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Home My WebLink About08-03-21 City Commission Meeting Agenda and Packet MaterialsA.Call to Order - 6:00 PM - WebEx Videoconference B.Pledge of Allegiance and a Moment of Silence C.Changes to the Agenda D.Authorize Absence D.1 Authorize the Absence of Mayor Andrus E.FYI F.Commission Disclosures G.Consent G.1 Accounts Payable Claims Review and Approval (Stewart) THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, August 3, 2021 This meeting will be held using Webex, an online videoconferencing system. You can join this meeting: Via Webex: https://cityofbozeman.webex.com/cityofbozeman/onstage/g.php?MTID=edf24cc463447178a1e46a71edb089449 Click the Register link, enter the required information, and click submit. Click Join Now to enter the meeting. Via Phone: This is for listening only if you cannot watch the stream or channel 190 United States Toll +1-650-479-3208 Access code: 182 547 1750 If you are interested in commenting in writing on items on the agenda please send an email to agenda@bozeman.net prior to 12:00pm on the day of the meeting. You may also comment by visiting the Commission's comment page. You can also comment by joining the Webex meeting. If you do join the Webex meeting, we ask you please be patient in helping us work through this online meeting. If you are not able to join the Webex meeting and would like to provide oral comment you may send a request to agenda@bozeman.net with your phone number, the item(s) you wish to comment on, and the City Clerk will call you during the meeting to provide comment. You may also send the above information via text to 406-224-3967. As always, the meeting will be streamed through the Commission's video page and available in the City on cable channel 190. 1 G.2 Appoint a Sub-committee of Two Commissioners to Review Pledged Securities as of June 30, 2021(Donald) G.3 Authorize the Mayor to Sign a Findings of Fact for the Bozeman Gateway Phase 4 Major Subdivision, Application 19436(Rosenberg) G.4 Approve the Ten Lot Final Plat of the South University District Phase 3, 74.88 Acres at the South East Corner of Kagy Boulevard and S. 19th Avenue, Approve the Updated Final Park Plan, and Authorize the City Manager to Sign Easements for Storm Water, Public Street, and Public Access and Authorize the Director of Community Development to Sign an Improvements Agreement, Application 21241(Saunders) G.5 Authorize the City Manager to Sign a Sewer and Access Easement and Agreement with Bridger Peaks Holding, LLC and Saccoccia Lands, LLC for the Bozeman East Mixed Use Phase 1 & 2 Project (19231)(Johnson) G.6 Authorize the City Manager to Sign Temporary Construction Permits and Right-of-Way Documents with Charles Gensemer and Century Warehousing, Inc for the Griffin Drive and Manley Road Street and Stormwater Improvements Project(Lonsdale) G.7 Authorize the City Manager to Sign A Professional Services Agreement Between the City of Bozeman and the Downtown Bozeman Partnership for the Administration of the Downtown Business Improvement District for Fiscal Year 2022(Cope) G.8 Authorize the City Manager to Sign A Professional Services Agreement Between the City of Bozeman and the Downtown Bozeman Partnership for the Administration of the Downtown Urban Renewal District for Fiscal Year 2022(Staley) G.9 Authorize the City Manager to Sign a First Amendment to the Professional Services Agreement with Elkhorn Commissioning Group to Include Construction Commissioning for the Bozeman Public Safety Center(Meyer) G.10 Resolution 5325 Vacate and Abandon a Portion of the Road Easement Entirely within Railroad Right of Way Adjacent to Griffin Drive Described in Book 84, Page 365, Gallatin County, Montana(Lonsdale) G.11 Ordinance 2082 Provisional Adoption to Rezone 41.52 Acres in the Four Points Subdivision from R-4, Residential High Density District to R-5, Residential Mixed-Use High Density District, Application 21005(Rogers) H.Public Comment This is the time to comment on any matter falling within the scope of the Bozeman City Commission. There will also be time in conjunction with each agenda item for public comment relating to that item but you may only speak once. Please note, the City Commission cannot take action on any item which does not appear on the agenda. All persons addressing the City Commission shall speak in a civil and courteous manner and members of the audience shall be respectful of others. Please state your name and address in an audible tone of voice for the record and limit your comments to three minutes. 2 I.Action Items I.1 Resolution 5268 Establishing Tree Maintenance District Assessments for FY2022 (Donald) I.2 Resolution 5269 Establishing a Six Percent Change to Arterial and Collector Street Maintenance District Assessments for FY 2022(Donald) I.3 Resolution 5270 Establishing a Six Percent Increase to Street Maintenance District Assessments for FY 2022(Donald) I.4 Resolution 5271 Establishing a 33 Percent Change to Parks and Trails Maintenance District Assessments for FY 2022(Donald) I.5 University Crossing Apartments Annexation and Zone Map Amendment, Application 21152 to Annex Approximately 10,250 Square Feet and Zone it as B-2 at 2025 W. Kagy Blvd(Saunders) I.6 Stockyard Properties Zone Map Amendment, Application 21102 Amending Zoning from R-4 and B-1 to REMU and B2-M on Approximately 12.2 Acres on the West Side of the Intersection of Story Mill Road and Griffin Drive(Saunders) I.7 Gran Cielo Subdivision Phase 2 Zone Map Amendment of the City Zoning Map on 9.01 Acres to Change from R-4 High Density Residential District to a Zoning Designation of R-5 Residential Mixed-Use High Density District, Located South of Stucky Road, West of South 27th Avenue, and north of Bennett Boulevard, Application 21095(Saunders) J.Appointments K.FYI / Discussion L.Adjournment City Commission meetings are open to all members of the public. If you have a disability that requires assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 (TDD 582-2301). Commission meetings are televised live on cable channel 190 and streamed live at www.bozeman.net. City Commission meetings are re-aired on cable Channel 190 Wednesday night at 4 p.m., Thursday at noon, Friday at 10 a.m. and Sunday at 2 p.m. In order for the City Commission to receive all relevant public comment in time for this City Commission meeting, please submit via www.bozeman.net or by emailing agenda@bozeman.net no later than 12:00 PM on the day of the meeting. Public comment may be made in person at the meeting as well. 3 Memorandum REPORT TO:City Commission SUBJECT:Authorize the Absence of Mayor Andrus MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Administration RECOMMENDATION:Authorize the Absence of Mayor Andrus 4 Memorandum REPORT TO:City Commission FROM:Levi Stewart, Interim Accounting Technician Kristin Donald, Finance Director SUBJECT:Accounts Payable Claims Review and Approval MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Finance RECOMMENDATION:The City Commission approves payment of the claims. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:Section 7-6-4301 MCA states that claims should not be paid by the City until they have been first presented to the City Commission. Claims presented to the City Commission have been reviewed by the Finance Department to ensure that all proper supporting documentation has been submitted, all required departmental authorized signatures are present indicating that the goods or services have been received and that the expenditure is within budget, and that the account coding is correct. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The total amount of the claims to be paid is presented at the bottom of the Expenditure Approval List posted on the City’s website at http://www.bozeman.net/government/finance/purchasing. Individual claims in excess of $100,000: to be announced in weekly e-mail from Interim Accounting Technician Levi Stewart. Report compiled on: July 23, 2021 5 Memorandum REPORT TO:City Commission FROM:Laurae Clark, Treasurer Kristin Donald, Finance Director SUBJECT:Appoint a Sub-committee of Two Commissioners to Review Pledged Securities as of June 30, 2021 MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Finance RECOMMENDATION: Appoint Mayor Andrus and Deputy Mayor Cunningham to review the depository bonds and pledged securities as of June 30, 2021. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND: 17-6-102. Insurance on deposits. (1) Deposits in excess of the amount insured by the federal deposit insurance corporation or the national credit union administration may not be made unless the bank, building and loan association, savings and loan association, or credit union first delivers to the state treasurer or deposits in trust with some solvent bank, as security therefore, bonds or other obligations of the kinds listed in 17-6-103, having a market value equal to at least 50% of the amount of the deposits in excess of the amount insured. The board of investments may require security of a greater value. When negotiable securities are placed in trust, the trustee's receipt may be accepted instead of the actual securities if the receipt is in favor of the state treasurer, successors in office, and the state of Montana and the form of receipt and the trustee have been approved by the board of investments. (2) Any bank, building and loan association, savings and loan association, or credit union pledging securities as provided in this section may at any time substitute securities for any part of the securities pledged. The substituted collateral must conform to 17-6-103 and have a market value at least sufficient for compliance with subsection (1). If the substituted securities are held in trust, the trustee shall, on the same day the substitution is made, forward by registered or certified mail to the state treasurer and to the depository financial institution a receipt specifically describing and identifying both the securities substituted and those released 6 and returned to the depository financial institution. Section 7-6-207 (2), MCA requires the City Commission to approve pledged securities at least quarterly. The Commission appoints two commissioners quarterly on a rotating basis. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission FISCAL EFFECTS:None Attachments: Depository Bonds & Securities 0621.doc Report compiled on: July 22, 2021 7 DEPOSITORY BONDS AND SECURITIES AS OF June 30, 2021 MATURITY CUSIP NO/LOC NO. TOTAL AMOUNT US BANK All Accounts Federal Deposit Insurance Corporation-Operating Accts $ 250,000.00 Federal Deposit Insurance Corporation-CD $ 250,000.00 LOC-FHLB Cincinnati 07/15/2021 554455 $ 17,000,000.00 TOTAL – US Bank $ 17,500,000.00 FIRST SECURITY BANK All Accounts Federal Deposit Insurance Corporation $ 250,000.00 Celina TX ISD REF GO UNLTD BD 08/15/2033 151145NX3 $ 1,185,000.00 Celina TX ISD REF GO UNLTD BD 08/15/2034 151145NY1 $ 1,235,000.00 TOTAL - First Security Bank $ 2,670,000.00 This is to certify that we, the Commission of the City of Bozeman, in compliance with the provisions of Section 7-6- 207, M.C.A., have thisday certified the receipts of the First Security Bankand US Bank, for the Depository Bonds held by the Director of Finance as security, for the deposit for the City of Bozeman funds as of June 30, 2021, by the banks of Bozeman and approve and accept the same. _____________________________________________ CYNTHIA L. ANDRUS, Mayor ______________________________________________________________________________ TERRY CUNNINGHAM, Deputy Mayor I-HO POMEROY, Commissioner ______________________________________________________________________________ CHRISTOPHER COBURN, Commissioner JENNIFER MADGIC, Commissioner 8 PLEDGED SECURITIES AND CASH IN BANK As of June 30, 2021 US BANK Total Cash and CD's on Deposit $6,152,100.68 FDIC Coverage $500,000.00 Amount Remaining $5,652,100.68 Pledges Required 104%$5,878,184.71 Actual Pledges $17,000,000.00 Over (Under) Pledged $11,121,815.29 FIRST SECURITY BANK CD's $2,039,059.96 FDIC Coverage $250,000.00 Amount Remaining $1,789,059.96 Pledges Required 50%$894,529.98 Actual Pledges $2,420,000.00 Over (Under) Pledged $1,525,470.02 REFERENCE: Section 7-6-207, M.C.A. 9 Memorandum REPORT TO:City Commission FROM:Sarah Rosenberg, Associate Planner Brian Kreuger, Development Review Manager Martin Matsen, Director of Community Development SUBJECT:Authorize the Mayor to Sign a Findings of Fact for the Bozeman Gateway Phase 4 Major Subdivision, Application 19436 MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Community Development - Quasi-Judicial RECOMMENDATION:Authorize the Mayor to Sign a Findings of Fact for the Bozeman Gateway Phase 4 Major Subdivision, Application 19436 STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND:The City Commission held a public hearing on July 20, 2021 on the major subdivision. No public comment was received during the meeting. After consideration of the application, staff analysis, and presentations the City Commission approved the subdivision on a vote of 5-0. The recording of the video can be found here: https://bozeman.granicus.com/player/clip/117?view_id=1&redirect=true UNRESOLVED ISSUES:NA ALTERNATIVES:NA FISCAL EFFECTS:NA Attachments: 19436 Findings of Fact.pdf Report compiled on: July 21, 2021 10 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 1 of 24 19436, Findings of Fact for the Bozeman Gateway Phase 4 Major Subdivision Public Hearing Date: Planning Board June 21, 2021 at 6:00 via WebEx. A WebEx link will be provided with the Planning Board agenda. City Commission, July 20, 2021 at 6:00 pm via WebEx. A WebEx link will be provided with the City Commission agenda. Project Description: Preliminary plat to create a 10 lot major subdivision that includes 6 developable lots, 1 common area, and 3 open space lots on 15.8 acres within the Bozeman Gateway PUD. The property is zoned B-2. Project Location: Remainder tracts of Tract 2A of the Amended Plat of West College, Minor Subdivision Number 195.A, Bozeman, Gallatin County, Montana Recommendation: The application conforms to standards and is sufficient for approval with conditions and code provisions. Planning Board Recommended Motion: Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 19436 and move to recommend approval of the subdivision with conditions and subject to all applicable code provisions. Commission Recommend Motion: Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 19436 and move to approve the subdivision with conditions and subject to all applicable code provisions. Report Date: July 21, 2021 Staff Contact: Sarah Rosenberg, Associate Planner Karl Johnson, Project Engineer Agenda Item Type: Action (Quasi-judicial) EXECUTIVE SUMMARY Unresolved Issues There are no known unresolved issues. Project Summary This report is based on the application materials submitted and any public comment received to date. 11 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 2 of 24 The property owner and applicant submitted a preliminary plat application to create 6 lots, 1 common area, and 3 open space lots on 15.8 acres. Phase 4 is part of the Bozeman Gateway Planned Unit Development (PUD) Subdivision which consists of a 72-acre mixed use development. It is located directly south and west of the Huffine Lane/West College Street intersection, west of Fowler Avenue and north of West Garfield Street. Phase 1, 2, and 3 are currently being development in accordance with the PUD. Phase 4 is unplatted and currently sits vacant. Phase 4 is considered the Town Center of the Bozeman Gateway PUD with a “main street” that runs east-west through the middle of the development. It will continue the concept of open space corridors that was approved with the PUD and previous phases. A north-south open space corridor is located on the east side of development and totals 1.72 acres. Phase 4 will include a combination of residential and commercial. With the adoption of the PUD back in 2006, a stipulation was placed on the development that it had to contain a residential component within Phase 4. Phase 4 will include this residential component along with commercial uses. The final decision for a Major Subdivision Preliminary Plat with less than 50 lots must be made within 60 working days of the date it was deemed adequate. The Development Review Committee (DRC) deemed the application adequate for continued review on May 11, 2021. Pursuant to BMC 38.240.130 the city commission shall approve, conditionally approve or deny the subdivision application by August 5, 2021, unless there is a written extension from the developer, not to exceed one year. Planning Board The Planning Board reviewed this application on Monday, June 21. No public comment was received during the meeting. The Planning Board recommended approval 6-0. The link to the video can be found here: https://bozeman.granicus.com/player/clip/104?view_id=1&redirect=true City Commission The City Commission held a public hearing on July 20, 2021. No public comment was received during the meeting. After consideration of the application, staff analysis, and presentations the City Commission approved the subdivision on a vote of 5-0. The recording of the video can be found here: https://bozeman.granicus.com/player/clip/117?view_id=1&redirect=true 12 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 3 of 24 TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................................................ 1 Unresolved Issues ............................................................................................................... 1 Project Summary ................................................................................................................. 1 Alternatives ......................................................................................................................... 2 SECTION 1 - MAP SERIES .......................................................................................................... 4 SECTION 2 – REQUESTED VARIANCES ................................................................................. 7 SECTION 3 - RECOMMENDED CONDITIONS OF APPROVAL ............................................ 7 SECTION 4 - CODE REQUIREMENTS REQUIRING PLAT CORRECTIONS ...................... 10 SECTION 5 - RECOMMENDATIONS AND FUTURE ACTIONS .......................................... 14 SECTION 6 - STAFF ANALYSIS AND FINDINGS ................................................................. 14 Applicable Subdivision Review Criteria, Section 38.240.130.A.5.b, BMC. .................... 14 Primary Subdivision Review Criteria, Section 76-3-608 ................................................. 16 Preliminary Plat Supplements ........................................................................................... 18 APPENDIX A –PROJECT SITE ZONING AND GROWTH POLICY...................................... 21 APPENDIX B – NOTICING AND PUBLIC COMMENT ......................................................... 23 APPENDIX C – PROJECT BACKGROUND ............................................................................. 23 APPENDIX D - OWNER INFORMATION & REVIEWING STAFF ....................................... 23 ATTACHMENTS ......................................................................................................................... 24 13 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 4 of 24 SECTION 1 - MAP SERIES Figure 1. Zoning classification 14 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 5 of 24 Figure 2. Preliminary Plat 15 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 6 of 24 Figure 3. Master Site Plan Phase 4 16 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 7 of 24 SECTION 2 – REQUESTED VARIANCES There are no variances requested with this subdivision application. SECTION 3 - RECOMMENDED CONDITIONS OF APPROVAL Please note that these conditions are in addition to any required code provisions identified in this report. These conditions are specific to the preliminary plat application. Staff has considered the impacts as identified in the staff analysis and application materials and these conditions of approval are reasonably related and roughly proportionate to the development. 1. BMC 38.220.070. The applicant shall submit with the application for final plat review and approval, a written narrative stating how each of the conditions of preliminary plat approval and noted code provisions have been satisfactorily addressed. This narrative shall be in sufficient detail to direct the reviewer to the appropriate plat, plan, sheet, note, covenant, etc. in the submittal. 2. BMC 38.220.070.A.7. Simultaneously with filing of the final plat, in conjunction with required or offered dedications, the subdivider (or owner of the property being subdivided if the owner is not the subdivider) shall transfer ownership to the property owners’ association (POA) of any open space proposed to be conveyed to the POA and all its right, title, and interest in any improvements made to such parkland or open space. For the transfer of real property, the subdivider or owner of the property shall submit with the application for final plat a warranty deed or other instrument acceptable to the City Attorney transferring fee simple ownership to the POA and associated realty transfer certificate. The subdivider or owner of the property must record the deed or instrument at the time of recording of the final plat. For personal property installed upon open space owned by the property owners association, the subdivider shall provide an instrument acceptable to the City Attorney transferring all its rights, title and interest in such improvements including all applicable warranties to such improvements. 3. BMC 38.240.150.A.3. Deeds and Realty transfer certificates must be provided for transfer of any platted tract to the City or other entity in association with filing of the final plat. 4. BMC 38.410.060.A. The final plat must provide all necessary utility easements and they must be described, dimensioned and shown on each subdivision block of the final plat in their true and correct location. 5. BMC 38.220.320. In order to disclose to future purchasers their obligations regarding open space established in the municipal code the following language shall be included on the Conditions of Approval Sheet of the final plat: “As established by 38.220.320.A, 38.340.150.A.3.d, and other applicable elements of the municipal code, ownership of all common open space areas and trails, and responsibility of maintenance thereof and for city assessments levied on the common open space lands shall be that of the property owners’ association. Maintenance responsibility shall include, in addition to the common 17 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 8 of 24 open space and trails, all vegetative ground cover, and irrigation systems in the public right-of-way boulevard strips along all external perimeter development streets and as adjacent to public parks or other common open space areas. All areas within the subdivision that are designated herein as common open space including trails are for the use and enjoyment by residents of the development and the general public. The property owners’ association shall be responsible for levying annual assessments to provide for the maintenance, repair, and upkeep of all common open space areas and trails. At the same time of recording the final plat of the subdivision the subdivider shall transfer ownership of all common open space areas within each phase to the property owners’ association created by the subdivider to maintain all common open space areas within Bozeman Gateway subdivision. The City may release the Bozeman Gateway Property Owners’ Association from the obligation to maintain parks dedicated to the City at the City’s discretion.” 6. Codes, Covenants & Restrictions must be updated and submitted with initial final plat to be recorded after approval. 7. The final plat must contain the following notation on the conditions of approval sheet of the final plat: “The responsibility for the maintenance of the stormwater facilities and associated landscaping in the open space lots and street frontage landscaping for the perimeter streets must be that of the property owners’ association. Maintenance responsibility must include the functioning of the stormwater facilities, all vegetative ground cover, boulevard trees and irrigation systems in the public right-of-way boulevard strips along all external perimeter development streets and any vegetative ground cover and landscaping on the open space lots. The property owners’ association must be responsible for levying annual assessments to provide for the maintenance, repair, and upkeep of all perimeter street frontage landscaping and open space lots and stormwater facilities. The perimeter streets of this subdivision include Garfield Street, Harmon Stream Boulevard, and Technology Boulevard. 8. Simultaneously with filing of the final plat, in conjunction with required or offered dedications, the subdivider (or owner of the property being subdivided if the owner is not the subdivider) shall transfer ownership to the property owner’s association of all any open space proposed to be conveyed to the property owner’s association and all its right, title, and interest in any improvements made to such parkland or open space. For the transfer of real property, the subdivider or owner of the property shall submit with the application for final plat a warranty deed or other instrument acceptable to the City Attorney transferring fee simple ownership to the property owner’s association and associated realty transfer certificate. The subdivider or owner of the property must record the deed or instrument at the time of recording of the final plat. For personal property installed upon open space owned by the property owner’s association, the subdivider shall provide an instrument acceptable to the City Attorney transferring all its rights, title and interest in such improvements including all applicable warranties to such improvements. 18 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 9 of 24 9. A notice prepared by the City shall be filed concurrently with the final plat so that it will appear on title reports. It shall read substantially as follows: Lots within the Bozeman Gateway Subdivision Phase 4 are subject to specific design standards and unique building setbacks from property lines. These standards may be found in Bozeman Gateway Development Manual. Lot owners are advised that these are specific to the Bozeman Gateway Subdivision and are in place of the general development standards of the City of Bozeman Zoning. If a development standard is not specifically established in the Bozeman Gateway Subdivision approval documents the general standards of the City apply. Modification of the special standards would require an amendment to the Bozeman Gateway Planned Unit Development. Modifications are strongly discouraged. It is the obligation of the lot owner to be fully informed as to these standards before beginning any home or site design process. Approval by the design review entity established in the covenants of the development does not bind the City of Bozeman to approve a construction plan. 10. BMC 38.570.030. A Special Improvement Lighting District (SILD) must be created prior to Final Plat Approval. Note that Bozeman Gateway Site Z project will likely be creating a SILD, so adding these lights to that SILD will be acceptable. 11. BMC 38.400.080. Sidewalks must be installed or financially guaranteed along the north side of Garfield from the intersection of Harmon Stream Boulevard to the eastern boundary of this Phase prior to Final Plat approval. 12. BMC 38.410.130. Compliance with BMC 38.410.130 shall be met prior to Final Plat approval. The applicant must contact Griffin Nielsen with the City of Bozeman Engineering Department for any cash in lieu of water rights determination. 13. BMC 38.240.410. Technology Blvd West is a privately maintained street located within public ROW as referenced in the provided approved PUD documentation. Prior to Final Plat Approval, the certificate of dedication shall reflect private maintenance. 14. BMC 38.220.040. As presented, forty-five (45) feet of West Garfield Street ROW is to be dedicated along the southern frontage of the proposed subdivision (intersection of Fowler and West Garfield). The applicant must dedicate the West Garfield Street ROW in the Certificate of Dedication of prior to Final Plat Approval. The applicant is advised that the City of Bozeman will accept responsibility for the maintenance of West Garfield Street. 15. BMC 38.240.510. The applicant must add the required text as stated in BMC Section 38.240.510 to the Conditions of Approval Sheet 3 prior to final plat approval. 16. BMC 38.220.070. The final plat must contain the following notation on the Conditions of Approval sheet: a. The responsibility of maintenance for the stormwater facilities, stormwater open space lots, pedestrian open space lots and street frontage landscaping for the perimeter streets must be that of the property owners’ association. Maintenance responsibility must include, all vegetative ground cover, boulevard trees and 19 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 10 of 24 irrigation systems in the public right-of-way boulevard strips along all external perimeter development streets. The property owners’ association must be responsible for levying annual assessments to provide for the maintenance, repair, and upkeep of all perimeter street frontage landscaping and stormwater facilities and all open space landscaping. b. All public stormwater facilities not on property dedicated to the City of Bozeman shall be located within public drainage easements that provide for storm water facility maintenance responsibility by the property owners association. c. Due to the known high groundwater conditions in the area no basements will be permitted with future development of the site. No crawl spaces will be permitted with future development of the site, unless a professional engineer registered in the State of Montana certifies that the lowest point of any proposed structure is located above the seasonal high groundwater level and provide supporting groundwater data prior to the release of building permit. In addition, sump pumps are not allowed to be connected to the sanitary sewer system. Sump pumps are also not allowed to be connected to the drainage system unless capacity is designed into the drainage system to accept the pumped water. Water from sump pumps may not be discharged onto streets, such as into the curb and gutters where they may create a safety hazard for pedestrians and vehicles. d. All downstream water user facilities will not be impacted by this Subdivision. e. All lots are subject to a 10-foot wide front yard utility easement. f. All Open Space and Public Access areas to be owned and maintained by the property owners association. g. If water rights or cash-in-lieu of water rights, have not been provided with Final Plat, then water rights or cash-in-lieu must be provided with any future site plan development or applicable development application. 17. BMC 38.420.030. Final payment for cash-in-lieu of parkland will be determined and paid at the time of final plat. A parkland table and CIL amount must be printed on the final plat. If final plat precedes site plan approval, CIL up to 8 du/ac is required prior to Final Plat at appraisal value at time of final plat. Balance of additional 4 du/ac due at subsequent site plan approval. 18. BMC 38.430.040. The Planned Unit Development Final Plan shall be completed and approved by the City of Bozeman before the approval of the final plat. SECTION 4 - CODE REQUIREMENTS REQUIRING PLAT CORRECTIONS The following are procedural requirements not yet demonstrated by the plat and must be satisfied at the final plat. 1. The final plat must conform to all requirements of the Bozeman Municipal Code and the Uniform Standards for Subdivision Plats (Uniform Standards for Certificates of Survey and Subdivision Plats (24.183.1104 ARM) and shall be accompanied by all required documents, including certification from the City Engineer that as-built drawings for public improvements were received, a platting certificate, and all required and corrected certificates. The Final 20 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 11 of 24 Plat application shall include three (3) signed reproducible copies on a 3 mil or heavier stable base polyester film (or equivalent). The Gallatin County Clerk & Recorder’s office has elected to continue the existing medium requirements of 2 mylars with a 1½” binding margin on one side for both plats and COS’s. The Clerk and Recorder will file the new Conditions of Approval sheet as the last same sized mylar sheet in the plat set. 2. BMC 38.100.080.A. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as conditions of approval, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or state law. 3. BMC 38.220.300 & 310. The Property Owners’ Association (POA) documents must be finalized and recorded with the final plat. The POA documents must include the requirements of Section 38.220.300 and 320. 4. BMC 38.270.030. The applicant must submit plans and specifications for water and sewer main extensions, streets, and storm water improvements, prepared and signed by a professional engineer (PE) registered in the State of Montana, which must be provided to and approved by the City Engineer. Water and sewer plans must also be approved by the Montana Department of Environmental Quality. The applicant must also provide professional engineering services for construction inspection, post-construction certification, and preparation of mylar record drawings. Construction shall not be initiated on the public infrastructure improvements until the plans and specifications have been approved and a preconstruction conference has been conducted. Building permits will not be issued prior to City acceptance of the site infrastructure improvements unless all provisions set forth in Section 38.270.030.C of the Bozeman Municipal Code are met to allow for concurrent construction. 5. BMC 38.410.060.A. The final plat must provide all necessary utility easements and they must be described, dimensioned and shown on each subdivision block of the final plat in their true and correct location. The recorded easement number must be documented on the final plat. a. The applicant is advised that all dedicated public easements must be recorded the City’s standard template easement documents separate from the plat and the recorded document number must be listed on the final plat. Easements will be deemed inadequate if they are not in a final draft format (signatures are not required for the draft review). Easements must be stamped by a licensed professional surveyor. In preparing signature blocks on any upcoming documents, please make the following changes: Jeff Mihelich, City Manager; Mike Maas, City Clerk. If a new member is established, the easement documents must be updated. 6. BMC 38.410.060. The applicant must provide a ten foot private utility easement (power, gas, communication, etc.) along the developments property frontage. The applicant may contact the Engineering Department to receive a copy of a utility easement template. The easement 21 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 12 of 24 must be recorded and provided to engineering prior to final plat approval. The recorded easement number must be written in on the final plat. 7. BMC 38.410.060. The applicant must provide public access easement for the proposed sidewalk system will reside along Tech Blvd West. The easement must be recorded and provided to engineering prior to Final Plat Approval. The recorded easement number must be written in on the final plat. a. As presented in easement note #7, the note reads as if the open space and sidewalks are for only those in the subdivision and not the general public. The applicant must either modify comment #7 or provide a public access easement for the sidewalk system. 8. BMC 38.410.060.C A public drainage easement shall be provided for all stormwater facilities conveying runoff from dedicated public ROW. The applicant may contact the Engineering Department to receive a copy of the drainage easement template. The easement must be recorded and provided to engineering prior to Final Plat Approval. The recorded easement number must be written in on the final plat 9. BMC 38.410.060.C. The applicant must provide a city standard thirty (30) foot wide Sewer and Water Pipeline and Access Easement and Agreement for public water and sewer utilities located outside of dedicated public right of way. The applicant may contact the Engineering Department to receive a copy of the easement template. The easement must be recorded and provided to engineering prior to Final Plat Approval. The recorded easement number must be written in on the final plat. 10. BMC 38.240.410.Technology Blvd West is a privately maintained street located within public ROW as referenced in the provided approved PUD documentation. Prior to Final Plat Approval, the certificate of dedication shall reflect private maintenance. 11. BMC 38.270.030, Completion of Improvements. If it is the developer’s intent to file the plat prior to the completion of all required improvements, an Improvements Agreement shall be entered into with the City of Bozeman guaranteeing the completion of all improvements in accordance with the preliminary plat submittal information and conditions of approval. If the final plat is filed prior to the installation of all improvements, the developer shall supply the City of Bozeman with an acceptable method of security equal to 150 percent of the cost of the remaining improvements. 12. BMC 38.240.450. The applicant is advised where public improvements are to be installed prior to Final Plat Approval, the final plat of subdivision must contain a certificate of completion of public improvements. Prior to Final Plat Approval, Sheet 1 certificates must list all completed and accepted improvements, if applicable. 13. BMC 38.240.530. The Certificate of Completion of water-related improvements is not shown on sheet 1 of the plat and must be shown, if applicable prior to Final Plat Approval. 22 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 13 of 24 14. BMC 38.240.530. When irrigation of public facilities are to be installed prior to final plat approval, the final plat of subdivision must contain a certificate of completion of water- related improvements. The certificate must list all completed and accepted improvements, including but not limited to all irrigation system record drawings. The subdivision proposes irrigation of public street frontage. This certificate must be provided on the final plat. 15. BMC 38.240.420. If there are liens or mortgages against the property, the appropriate Mortgagee certificate must be included. 16. BMC 38.240. The surveyor needs to provide their professional seal of surveyor prior to final plat approval. 17. BMC 38.410.120. If mail delivery will not be to each individual lot within the development, the developer shall provide an off-street area for mail delivery within the development in cooperation with the USPS. It shall not be the responsibility of the City to maintain or plow any mail delivery area constructed within a City right-of-way. If cluster boxes are use a dedicated area to pull up and access the boxes must be provided. 18. BMC 38.420.030.D. Where a cash (or improvement) donation has been accepted in-lieu of land dedication, the amount must be stated on the final plat. 19. BMC 38.410.060. Utility easements shall be provided in accordance with the UDC. The required 10-foot front yard easement is required for all lots unless written confirmation is submitted with the preliminary plat from all utility companies providing service indicating that front yard easements are not needed. 20. BMC 38.220.320. Covenants. Covenants, restrictions, and articles of incorporation for the creation of a property owners’ association shall be submitted with the final plat application for review and approval by the Department of Community Development and shall contain, but not be limited to the following items: 1) the orientation and setbacks for corner lots, 2) all additional setbacks required when lots are adjacent to pathway corridors and minor arterial roads, 3) provisions for fences, 4) provisions for snow removal, maintenance and upkeep of all common areas, public and private parks, trails, storm water runoff facilities, 5) guidelines that outline architectural and landscape requirements for each individual lot and/or phase of the subdivision, including placement of boulevard trees at a regular spacing for each residential lot, 6) provisions that outline the renewal of an annual contract with a certified landscape nursery person for the upkeep and maintenance of all parklands, common open space, trails, etc., 7) landscape details for detention ponds, outlet structures, boulevard trees, parkland, irrigation, etc., 8) mitigation of groundwater with established floor elevations, 9) noxious weed control, and 10) assessment of existing and future Special Improvement Districts. These documents shall be submitted to the city attorney and shall not be accepted by the City until approved as to legal form and effect. A draft of these documents must be submitted for review and approval by the Community Development Department at least 30 working days prior to submitting a final plat application. These documents shall be executed and submitted with the initial final plat to be filed with the Gallatin County Clerk and Recorder at the time of final plat recordation. 23 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 14 of 24 SECTION 5 - RECOMMENDATIONS AND FUTURE ACTIONS The DRC determined that the application is adequate for continued review and found that application conforms to standards and is sufficient for approval with conditions and code provisions on May 11, 2021. Public hearing date for the Planning Board was on June 21, 2021. The hearing was held via WebEx. The Planning Board recommended approval 6-0 of the subdivision. Public hearing date for the City Commission is July 20, 2021 at 6:00 PM. The hearing will be held via WebEx with a WebEx link provided with the City Commission Agenda. SECTION 6 - STAFF ANALYSIS AND FINDINGS Analysis and resulting recommendations are based on the entirety of the application materials, municipal codes, standards, and plans, public comment, and all other materials available during the review period. Collectively this information is the record of the review. The analysis is a summary of the completed review. Applicable Subdivision Review Criteria, Section 38.240.130.A.5.b, BMC. In considering applications for subdivision approval under this title, the advisory boards and City Commission shall consider the following: 1. Compliance with the survey requirements of Part 4 of the Montana Subdivision and Platting Act The preliminary plat has been prepared in accordance with the survey requirements of the Montana Subdivision and Platting Act by a Professional Engineer registered in the State of Montana. As outlined in code provision number 1, the final plat must comply with State statute, Administrative Rules of Montana, and the Bozeman Municipal Code. A conditions of approval sheet must be included and updated with the required notations can be added as required by conditions or code. 2. Compliance with the local subdivision regulations provided for in Part 5 of the Montana Subdivision and Platting Act The final plat must comply with the standards identified and referenced in the BMC. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as a condition of approval, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or State law. Sections 3 and 4 of this report identify conditions and code corrections necessary to meet all regulatory standards. Therefore, upon satisfaction of all conditions and code corrections the subdivision will comply with the local subdivision regulations. 24 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 15 of 24 3. Compliance with the local subdivision review procedures provided for in Part 6 of the Montana Subdivision and Platting Act The application was received on October 3, 2019 and was deemed inadequate for further review. Revised application materials were received on January 1, 2020, March 11, 2020, and April 7, 2021. The City deemed the application adequate for review on May 11, 2021. Public hearings are scheduled for June 21 and July 20, 2021. The hearings before the Planning Board and City Commission have been properly noticed as required by the Bozeman UDC. Based on the recommendation of the DRC and other applicable review agencies, as well as any public testimony received on the matter, the Planning Board must forward a recommendation in a report to the City Commission who will make the final decision on the applicant’s request. The final decision for a Major Subdivision Preliminary Plat with less than 50 lots must be made within 60 working days of the date it was deemed adequate. Pursuant to BMC 38.240.130 the city commission shall approve, conditionally approve or deny the subdivision application by August 5, 2021, unless there is a written extension from the developer, not to exceed one year. Public notice for this application was given as described in Appendix C. No public comment has been received. On June 16, 2021 this major subdivision staff report was completed and forwarded with a recommendation of conditional approval for consideration to the Planning Board. On July 8, 2021, the staff report was completed and forwarded with a recommendation of conditional approval for consideration to the City Commission. 4. Compliance with Chapter 38, BMC and other relevant regulations Based on review of the Development Review Committee and the Department of Community Development all applicable regulations are met if all code requirements are satisfied. Pertinent code provisions and site specific requirements are included in this report for City Commission consideration in Sections 3 and 4. 5. The provision of easements to and within the subdivision for the location and installation of any necessary utilities The final plat will provide and depict all necessary utilities and required utility easements. Condition of approval 4 requires that all easements, existing and proposed, must be accurately depicted and addressed on the final plat and in the final plat application. Public utilities will be located within dedicated street right of ways. Code provision 5, 6, and 7 state that utility easements need to be provided and granted with the final plat in accordance with standards. 25 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 16 of 24 6. The provision of legal and physical access to each parcel within the subdivision and the notation of that access on the applicable plat and any instrument transferring the parcel Access to the property is from West Garfield Street to the south which is a City maintained road and Harmon Stream Boulevard to the west which is a privately maintained road. Technology Boulevard West is being extended from the east and required to be privately maintained per condition of approval number 13 and code provision number 10. Primary Subdivision Review Criteria, Section 76-3-608 1. The effect on agriculture This item was waived by the DRC with the pre-application. 2. The effect on Agricultural water user facilities Agricultural water user facilities on site include canals, irrigation ditches, and streams that provide irrigation water to downstream users. The Farmer’s Canal, tributary to the Baxter Border stream, Section Line Ditch, and Upper Cattail Creek (Harmon Stream) all transport irrigation water through the property. No modifications to the existing agricultural water user facilities will be done with this phase and the ability of the facilities to deliver water to downstream users will be protected. 3. The effect on Local services Water/Sewer – Water and sewer systems exist to serve the subdivision. The subdivider proposes to extend water and sewer mains to the subdivision. Code provision 4 requires the applicant to submit plans for water and sewer main extensions, approved by the Montana Department of Environmental Quality, to be reviewed by the City. Code provision 9 requires a city standard sewer easement where the sewer system is located. Building permits will not be issued prior to city acceptance of site infrastructure improvements, unless concurrent construction is requested and conditions allow. Water rights exist for the subject property, the applicant proposes to transfer to City ownership existing water rights as outlined in condition number 12. Streets – The Growth Policy and subdivision standards require adequate connectivity of a development to the street grid. Access is taken from West Garfield to the south, Harmon Stream Boulevard to the west, and Technology Boulevard to the east. Diagonal parking is provided along Technology Boulevard. All internal streets will be privately maintained as outlined in condition of approval number 3 and code provision number 10. A traffic impact study was provided with the application and found that the infrastructure that exists and is proposed for the project will service the development. Police/Fire – The area of the subdivision is within the service area of both these departments. No concerns on service availability have been identified. 26 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 17 of 24 Stormwater - The subdivision will construct storm water control facilities to conform to municipal code. Phase 4 lies within the scope of the previously approved drainage plan and will incorporate minor basins and low impact development for runoff. The responsibility of the stormwater facilities is the responsibility of the Property Owners Association (POA) as outlined in condition of approval 16. Inspection of installed facilities prior to final plat will verify that standards have been met. Parklands – Since phase 4 contains the residential component, parkland is required. Parkland will be provided through cash-in-lieu of a land dedication equating to 2.15 acres. Cash-in-lieu of parkland is required with the final plat as outlined in condition 17. 4. The effect on the Natural environment No significant negative impacts to the natural environment have been identified. There are no floodplains located within the subject property. A wetland delineation report was completed and determined that no waters are located within the project area. The site is in an area of high groundwater which may negatively impact future structures or cause illicit discharges into the sanitary sewer and over burden the surface drainage system. Condition 16d prohibits use of basements or crawl spaces unless a professional engineer certifies that the structure has been designed in such a way to accommodate seasonal high groundwater and requires addition of a notation of this restriction on the conditions of approval sheet. This requirement will protect both future structure owners from future hazards of flooding and lessen burden on the public from illicit discharges. BMC 38.550.070 requires use of wells or surface water rights to irrigate parks and open spaces rather than municipal water supply. The application will irrigate open space and boulevard strips landscaping with wells. 5. The effect on Wildlife and wildlife habitat No significant negative impacts to the wildlife and wildlife habitat have been identified. There are no known populations of large mammals or endangered species that occupy the site. 6. The effect on Public health and safety With the recommended conditions of approval and required plat corrections, the subdivision will not significantly impact public health and safety. The intent of the regulations in Chapter 38 of the Bozeman Municipal Code is to protect the public health, safety and general welfare. The subdivision has been reviewed by the DRC which has determined that it is in general compliance with the title with conditions and code provisions. Any other conditions deemed necessary to ensure compliance have been noted throughout this staff report. Condition of approval 1 requires full compliance with all applicable code requirements. All subdivisions must be reviewed against the criteria listed in 76-3-608.3.b-d, Mont Code Ann. and as a result, the Department of Community Development has reviewed this application against the listed criteria and further provides the following summary for submittal materials and 27 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 18 of 24 requirements. All infrastructure will meet City standards and the improvements to the watercourses will not impact the current floodplains on the project site nor will they increase flood risk on the property or surrounding properties. Preliminary Plat Supplements A subdivision pre-application plan review was completed by the DRC on February 21, 2019. The DRC found that more information was needed prior to the application going forward to preliminary plat so revisions were submitted on April 22, 2019. Staff offers the following summary comments on the supplemental information required with Article 38.220.060, BMC. 1. 38.220.060.A.1 Surface Water Phase 4 has been significantly disturbed due to surrounding commercial development. An unnamed drainage along the eastern side of the property once drained into the Farmer’s Canal which has since been rerouted and piped underground along the south boundary of the project. With the rerouting of the Farmer’s Canal, a steady source of water was no longer provided to the unnamed drainage and wetland feature. Therefore, the unnamed drainage has become a drainage swale which now only receives occasional stormwater runoff from surrounding parking areas and streets. Two culvert/bridge crossings will be installed with the project providing access across the unnamed drainage to parking facilities. The Drainage Plan calls for 30” concrete culverts or an equivalent capacity bride span to be installed at the crossings. 2. 38.220.060.A.2 Floodplains There are no floodplains on the subject property. 3. 38.220.060.A.3 Groundwater Groundwater depth was monitored and had depths that vary from 7-11’ below the ground surface. As a supplement to the original water table, a hydrograph from a nearby well has been submitted with the application. Elevating the roads slightly above the existing ground assist in providing separation to the groundwater. Condition of approval 16 restricts the use of basements and crawl spaces due to high groundwater. 4. 38.220.060.A.4 Geology, Soils and Slopes This subdivision will not significantly impact the geology, soils or slopes. Alluvial deposits derived from the mountains south of Bozeman underlie the subdivision. There are no geological hazards or unusual features that limit the suitability of the land for the proposed uses. Two soil types exist on the site that are similar to those found throughout Bozeman. Limitations to development are primarily depth to groundwater, bearing capacity, frost heave potential, shrink-swell potential and flooding. 28 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 19 of 24 To minimize erosion, the construction contract shall provide for seeing of slopes in cut and fill areas. Methods of erosion control and revegetation shall be in conformance to the Montana Department of Environmental Quality Montana Sediment and Erosion Control Manual. 5. 38.220.060.A.5 Vegetation On site vegetation is limited to grasses, forbs and a few locations with low growing shrubs, such as wild roses, found along fence lines and near drainage courses. There are no critical plant communities on site. A weed management plan is included in the application. 6. 38.220.060.A.6 Wildlife See discussion above under primary review criteria. 7. 38.220.060.A.7 Historical Features There are no known historical features located within the property. A Cultural Evaluation was conducted in 2004 that stated that the Farmer’s Canal may be significant in terms of National Register criteria but the integrity of the entire canal system has been compromised over time. If any historic items are discovered during construction, the State Historic Preservation Office will be contacted. 8. 38.220.060.A.8 Agriculture Materials waived. 9. 38.220.060.A.9 Agricultural Water User Facilities This subdivision will not significantly impact agricultural water user facilities. See discussion above under primary review criteria. 10. 38.220.060.A.10 Water and Sewer The subdivision will not significantly burden city water and sewer infrastructure with the recommended conditions of approval and code provisions. See discussion above under primary review criteria. 11. 38.220.060.A.11 Stormwater Management The subdivision will not significantly impact stormwater infrastructure. The stormwater systems will be maintained by the Bozeman Gateway POA. See discussion above under primary review criteria. 12. 38.220.060.A.12 Streets, Roads and Alleys The subdivision will not significantly impact the City’s street infrastructure. See primary review criteria above for further information. 13. 38.220.060.A.13 Utilities This subdivision will not significantly impact utilities. Standard 10-ft utility easements will be provided across all lots. See discussion above under primary review criteria regarding extension of water and sewer. All private utilities are available in the area. 29 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 20 of 24 14. 38.220.060.A.14 Educational Facilities A letter was sent to Todd Swinehart, P.E., Director of Facilities, Bozeman Public Schools. The assumption was made that the existing zoning designation and mixed-use development will not generate many students within the development. 15. 38.220.060.A.15 Land Use Phase 4 is consistent with those allowed by B-2 zoning. Existing land uses bordering the east and north sides of the Bozeman Gateway property are commercial businesses. The properties bordering the south are public lands owned by Montana State University and is agricultural use. The proposed uses will not adversely affect adjacent land uses in the area. Access to the existing public lands will not be affected by the development. All open space within the planned area will be open to the public and easily accessible. No hazards or nuisances will be created by the development. Safety issues related to construction activity will be effectively controlled by standards construction management practices. 16. 38.220.060.A.16 Parks and Recreation Facilities See discussion above under primary review criteria. 17. 38.220.060.A.17 Neighborhood Center Plan The open space lots along the eastern perimeter of Phase 4 connect to the existing trail and open space network to the north. This shared community space and trail system encourages gathering, relaxing and recreating. A bike/pedestrian trail and sidewalk connects to the properties on the north which then connect to the overall trail network of the development that continues eastward to MSU. 18. 38.220.060.A.18 Lighting Plan The preliminary lighting plan is in accordance with the requirements of the UDC and Bozeman Gateway Development Manual. Light spacing on streets meets the requirements of the City of Bozeman Design Standards and Specifications Policy. 19. 38.220.060.A.19 Miscellaneous Materials waived. 20. 38.220.060.A.20 Affordable Housing Materials waived. 30 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 21 of 24 SECTION 7 - FINDINGS OF FACT, ORDER AND APPEAL PROVISIONS A. PURSUANT to Chapter 38, Article 3, BMC, and other applicable sections of Chapter 38, BMC, public notice was given, opportunity to submit comment was provided to affected parties, and a review of the preliminary plat described in these findings of fact was conducted. B. The purposes of the preliminary plat review were to consider all relevant evidence relating to public health, safety, welfare, and the other purposes of Chapter 38, BMC; to evaluate the proposal against the criteria and standards of Chapter 38 BMC, BMC; and to determine whether the plat should be approved, conditionally approved, or denied. C. The matter of the preliminary plat application was considered by the City Commission at a public hearing on July 20, 2021 at which time the Department of Community Development Staff reviewed the project, submitted and summarized changes to the conditions of approval, and summarized the public comment submitted to the City prior to the public hearing. D. The applicant acknowledged understanding and agreement with the recommended conditions of approval, code provisions including the changes to the conditions of approval. E. The City Commission requested public comment at the public hearing on July 20, 2021. There was no public testimony on the subdivision as submitted. F. It appeared to the City Commission that all parties and the public wishing to examine the proposed preliminary plat and offer comment were given the opportunity to do so. After receiving the recommendation of the relevant advisory bodies established by Article 38.210, BMC, and considering all matters of record presented with the application and during the public comment period defined by Chapter 38, BMC, the City Commission has found that the proposed preliminary plat would comply with the requirements of the Bozeman Municipal Code if certain conditions were imposed. Therefore, being fully advised of all matters having come before her regarding this application, the City Commission makes the following decision. G. The preliminary plat has been found to meet the criteria of Chapter 38, BMC, and is therefore approved, subject to the conditions listed in Section 2 of this report and the correction of any elements not in conformance with the standards of the Chapter including those identified in Section 3 of this report. The evidence contained in the submittal materials, advisory body review, public testimony, and this report, justify the conditions imposed on this development to ensure that the final site plan and subsequent construction complies with all applicable regulations, and all applicable criteria of Chapter 38, BMC. H. This City Commission order may be appealed by bringing an action in the Eighteenth District Court of Gallatin County, within 30 days after the adoption of this document by the City Commission, by following the procedures of Section 76-3-625, MCA. The preliminary approval of this subdivision shall be effective for three (3) years from the date of the signed Findings of Fact and Order approval. At the end of this period the City may, at the request of the subdivider, grant an extension to its approval for a period of mutually agreed upon time. 31 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 22 of 24 DATED this ________ day of _____________________, 2021 BOZEMAN CITY COMMISSION _________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _______________________________ Mike Maas City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 32 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 23 of 24 APPENDIX A –PROJECT SITE ZONING AND GROWTH POLICY Zoning Designation and Land Uses: The intent of the B-2 community business district is to provide for a broad range of mutually supportive retail and service functions located in clustered areas bordered on one or more sides by limited access arterial streets. Multi-household dwellings, townhouses, and apartments are allowed as a secondary use due to their complementary nature and ability to enhance the walkability of these districts. Design standards emphasizing pedestrian oriented design are important elements of this district. Use of this zone is appropriate for arterial corridors, commercial nodes, and/or areas served by transit. Adopted Growth Policy Designation: The Future Land Use Map of the Bozeman Community Plan designates the subject property to develop as “Regional Commercial and Services.” Regionally significant developments in this land use category may be developed with physically large and economically prominent facilities requiring substantial infrastructure and location near significant transportation facilities. Due to the scale of these developments, location, and transition between lower density uses is important. Residential space should be located above the first floor to maintain land availability for necessary services. Development within this category needs well-integrated utilities, transportation, and open space networks that encourage pedestrian activity and provide ready-access within and adjacent to development. Large community scale areas in this land use category are generally 75 acres or larger and are activity centers for several surrounding square miles. These are intended to service the overall community as well as adjacent neighborhoods and are typically distributed by a one-to two-mile separation. APPENDIX B – NOTICING AND PUBLIC COMMENT Notice was provided at least 15 and not more than 45 days prior to the Planning Board and City Commission public hearings. BMC 38.220.420, Notice was provided by posting the site, mailing by certified mail to adjacent property owners and by first class mail to all other owners within 200 feet on June 6, 2021. The site was posted with a notice on June 6, 2021 and a legal advertisement was published in the Bozeman Daily Chronicle on June 20 and July 18, 2021. Content of the notice contained all elements required by Article 38.220., BMC. No public comment has been received at the time of the writing of this staff report. APPENDIX C – PROJECT BACKGROUND Bozeman Gateway was created as a Planned Unit Development in 2006. There are five phases in total. Phases 1-3 have been subdivided and currently under development. APPENDIX D - OWNER INFORMATION & REVIEWING STAFF Owner/Applicant: Mitchell Development & Investments, LLC, PO Box 738, Great Falls, MT 59403 Representative: Morrison-Maierle, Inc., PO Box 1113, Bozeman, MT 59718 33 19436 Findings of Fact for Bozeman Gateway Phase 4 Major Subdivision Page 24 of 24 Report By: Sarah Rosenberg, AICP, Associate Planner ATTACHMENTS The full application and file of record can be viewed digitally at https://www.bozeman.net/government/planning/using-the-planning-map, select the “Project Documents Folder” link and navigate to application #19436, as well as digitally at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. Application materials – Available through the Laserfiche archive linked agenda materials and the full file is linked below. https://weblink.bozeman.net/WebLink/Browse.aspx?startid=210885&cr=1 This project can be viewed on the Community Development Viewer interactive map directly with this link: https://gisweb.bozeman.net/Html5Viewer/?viewer=planning&FILE_NUMBER=19-436 34 Memorandum REPORT TO:City Commission FROM:Chris Saunders, Community Development Manager Martin Matsen, Community Development Director SUBJECT:Approve the Ten Lot Final Plat of the South University District Phase 3, 74.88 Acres at the South East Corner of Kagy Boulevard and S. 19th Avenue, Approve the Updated Final Park Plan, and Authorize the City Manager to Sign Easements for Storm Water, Public Street, and Public Access and Authorize the Director of Community Development to Sign an Improvements Agreement, Application 21241 MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Community Development - Quasi-Judicial RECOMMENDATION:Approve the Ten Lot Final Plat of the South University District Phase 3, 74.88 Acres at the South East Corner of Kagy Boulevard and S. 19th Avenue, Approve the Updated Final Park Plan, and Authorize the City Manager to Sign Easements for Storm Water, Public Street, and Public Access and Authorize the Director of Community Development to Sign an Improvements Agreement, Application 21241. STRATEGIC PLAN:4.5 Housing and Transportation Choices: Vigorously encourage, through a wide variety of actions, the development of sustainable and lasting housing options for underserved individuals and families and improve mobility options that accommodate all travel modes. BACKGROUND:The plat creates 4 large lots for future site plan or subdivision development. The preliminary plat was initially approved as application 19090 and was amended by application 21066 to revise the conditions of approval. A variance was approved with application 21066 to enable phased installation of construction improvements. This application includes an improvements agreement to implement that variance. This application includes a public access easement for a pedestrian facility along S. 19th Avenue, connects Stucky Road between S. 19th Avenue to S. 11th Avenue, expands the existing park by approximately 14 acres, and provides necessary storm water treatment facilities. Findings of Fact for Application 19090 are at https://weblink.bozeman.net/WebLink/DocView.aspx? id=203699&dbid=0&repo=BOZEMAN 35 Findings of Fact for Application 21066 are at https://weblink.bozeman.net/WebLink/DocView.aspx? id=236845&dbid=0&repo=BOZEMAN UNRESOLVED ISSUES:None ALTERNATIVES:As identified by the City Commission. FISCAL EFFECTS:None. Attachments: 2021-07-23_Final Plat(SH1-3).pdf 071321 Final SUD Improvements Agreement.pdf 8-2_Subdivision Improvements Agreement OPC Estimate_06- 17-21.pdf 8-5_SUD Ph3 Phasing Plan_06-17-21.pdf Waiver of right to protest SIDs-Ph3_07-22-2021.pdf 01_SUDPh3Lt1Blk1_DrainageEasement_07-22-21.pdf 02_SUDPh3Lt2Blk1_DrainageEasement_07-22-21.pdf 03_SUDPh3Lt1Blk2_DrainageEasement_07-22-21.pdf 04_SUDPh3Lt2Blk2_DrainageEasement_07-22-21.pdf SUD PH3 Public Access Easement_07-20-21.pdf SUD_PH3_utility easement_All_07-22-2021.pdf 5.4-1_Phase 3 Block 1 covenants_7-22-21.pdf 5.4-2_Phase 3 Block 2 covenants_7-22-21.pdf 5.4-3_Phase 3 Block 3 covenants_7-22-21.pdf 5.4-4_Phase 3 Block 4 covenants_7-22-21.pdf 7-1_SUDMasterParkPlanDrawing_06-17-21.pdf 7-2_Park4Ph3Improvements_06-17-21.pdf Report compiled on: July 22, 2021 36 S.U.D. PH3-THIS PLAT1 OF 3 SUBDIVISION PLAT NO. ____________PROFESSIONAL ENGINEERS & SURVEYORSSTAHLY ENGINEERING & ASSOCIATESVICINITY MAP- NOT TO SCALE AMENDED PLAT OF LOT 2, SOUTH UNIVERSITY DISTRICT PH. 2 (PLAT J-605) LOCATED IN THE SW1/4 OF S13 & THE NW1/4 OF S24, T2S, R5E, P.M.M., CITY OF BOZEMAN, GALLATIN COUNTY, MONTANAKNOWN AS 'SOUTH UNIVERSITY DISTRICT PHASE 3 SUBDIVISION'37 BLOCK 1 Common Open SpaceLot 2 0.07 Acres 2,850.00 SFBLOCK 2 Common Open SpaceLot 1 0.07 Acres 2,850.00 SFBLOCK 2 Common Open SpaceLot 2 0.09 Acres 4,002.27 SFBLOCK 1 CommonOpen Space Lot 10.09 Acres4,001.27 SFBLOCK 4 Lot 1517,929.62 SF11.89 AcresBLOCK 2, Lot 18.60 Acres374,776.18 SFBLOCK 1Lot 18.20 Acres357,121.08 SFBLOCK 3 Lot 118.85 Acres 821,272.55 SFCity Park 313.36 Acres582,092.28 SFCity Park 4 1.83 Acres79,492.47 SFSEE DETAIL-2SEE DETAIL-1SEE DETAIL-3BLOCK 2Common OpenSpace Lot 20.09 Acres4,002.27 SFBLOCK 1Common OpenSpace Lot 20.07 Acres2,850.00SFBLOCK 1Common OpenSpace Lot 10.09 Acres4,001.27SFBLOCK 2Common OpenSpace Lot 10.07 Acres2850.00 SFROW(1)=6.37Acres277,465.93 SFDDROW(2)=5.46 Acres 237,682.31 SF2 OF 3 SUBDIVISION PLAT NO. ____________PROFESSIONAL ENGINEERS & SURVEYORSSTAHLY ENGINEERING & ASSOCIATESDETAIL 3 - 1"=30'DETAIL 2 - 1"=30'DETAIL 1 - 1"=30'DETAIL 4- PUBLICACCESS EASEMENTDEPICTION - 1"=150' AMENDED PLAT OF LOT 2, SOUTH UNIVERSITY DISTRICT PH. 2 (PLAT J-605) LOCATED IN THE SW1/4 OF S13 & THE NW1/4 OF S24, T2S, R5E, P.M.M., CITY OF BOZEMAN, GALLATIN COUNTY, MONTANAKNOWN AS 'SOUTH UNIVERSITY DISTRICT PHASE 3 SUBDIVISION'38 3 OF 3 SUBDIVISION PLAT NO. ____________PROFESSIONAL ENGINEERS & SURVEYORSSTAHLY ENGINEERING & ASSOCIATES CONDITIONS OF APPROVAL AMENDED PLAT OF LOT 2, SOUTH UNIVERSITY DISTRICT PH. 2 (PLAT J-605) LOCATED IN THE SW1/4 OF S13 & THE NW1/4 OF S24, T2S, R5E, P.M.M., CITY OF BOZEMAN, GALLATIN COUNTY, MONTANAKNOWN AS 'SOUTH UNIVERSITY DISTRICT PHASE 3 SUBDIVISION'39 South University District Phase 3 Subdivision Public Infrastructure Improvements Agreement 1 Send Original to: City of Bozeman Department of Community Development P.O.Box 1230 Bozeman, MT 59771 IMPROVEMENTS AGREEMENT FOR SOUTH UNIVERSITY DISTRICT PHASE 3 MAJOR SUBDIVISION BOZEMAN, MONTANA (PUBLIC INFRASTRUCTURE IMPROVEMENTS) THIS IMPROVEMENTS AGREEMENT (Agreement) is made and entered into this ______ day of __________________, 2021 by and between RTR Holdings II, LLC, hereinafter called the “Subdivider,” and the CITY OF BOZEMAN, a municipal corporation and political subdivision of the State of Montana, with offices at City Hall, 121 North Rouse Avenue, P.O. Box 1230, Bozeman, MT 58771-1230 hereinafter called the “City.” This Agreement is entered pursuant to and incorporates herein the provisions of section 38.270.060 of the Bozeman Municipal Code (BMC). WHEREAS, it is the intent and purpose of the Subdivider to meet the conditions of preliminary plat approval, Planning Application No. 19090 and as amended by application 21066, for the Final Plat application of South University District Phase 3 Major Subdivision, to subdivide approximately 74.87 acres together and create four (4) development lots that will require further subdivision and zoning review, two (2) City park lots, four (4) open space lots, and the remaining areas as public streets; and WHEREAS, it is the intent and purpose of the Subdivider to obtain Final Plat approval for South University District Phase 3 Major Subdivision; and WHEREAS, the it is the intent of the Subdivider to file the Final Plat for the South University District Phase 3 Subdivision, prior to the installation of all required subdivision improvements listed in Section 2 of this Agreement “Improvements,” along with financial and non-financial security, as provided in Division 38.270 BMC; and WHEREAS, it is the intent and purpose of both the Subdivider and the City to hereby 40 South University District Phase 3 Subdivision Public Infrastructure Improvements Agreement 2 enter into an Agreement which will guarantee the full and satisfactory completion of the required Improvements related to the property hereinafter described; and it is the intent of this Agreement, and of the parties hereto, to satisfy the improvements security requirements for the Final Plat approval of South University District Phase 3 Subdivision; NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, it is hereby agreed as follows: 1. Property Description This Agreement pertains to, and includes, those properties which are designated and identified as being: LEGAL DESCRIPTION – SOUTH UNIVERSITY DISTRICT PHASE 3 SUBDIVISION (PUBLIC INFRASTRUCTURE IMPROVEMENTS) The property is legally described as South University District Phase 3 Major Subdivision, a tract of land located in the southwest quarter (SW1/4) of Section 13 and the northwest quarter (NW1/4) of Section 24, Township 2 South, Range 5 East, Principal Meridian Montana upon Lot 2 of South University District Ph. 2 Minor Subdivision (PLAT J-605), City Of Bozeman, Gallatin County, Montana, containing 74.87 acres, more or less. SUBJECT to all easements of record or apparent from a visual inspection of the property. 2. Improvements A. Financially Secured Common Subdivision Improvements: This Agreement specifically includes the following Improvements identified as “Common Subdivision Improvements” on the “South University District Phase 3 Major Subdivision Phasing Plan for Concomitant Construction,” as listed in this Agreement and depicted in yellow highlight on the attached Exhibit A, which document and exhibit are made a part of this Agreement: i.) South 17th Avenue sewer from the intersections of Kagy and Willow Way to South 17th Avenue and Stucky Road; ii.) Stucky Road from South 14th Avenue to South 19th Avenue, including street, water, sewer, stormwater , and street lighting. Additionally, sidewalks adjacent to park frontages and along the north side of the road between South 17th Avenue and South 19th Avenue; iii.) Improvements to the eastern side of South 19th Avenue between Kagy Boulevard and Arnold Street, including widening, installing a 10 foot sidewalk, stormwater, street 41 South University District Phase 3 Subdivision Public Infrastructure Improvements Agreement 3 lighting, signalization improvements to 19th and Stucky intersection, and striping, pipe the existing irrigation ditch, and install irrigation and trees within the boulevard; and iv.) Stormwater, landscaping, and irrigation improvements to City Park 4 lot, 1.83 acres. The cost of the Common Subdivision Improvements has been estimated by Stahly Engineering, 851 Bridger Drive, Suite 1, Bozeman, MT 59715, at four million thirty-two thousand six hundred twelve and 95/100 dollars ($4,032,612.95). The estimate is attached and made a part of this Agreement, as Exhibit B. B. Non-financially Secured Improvements: This Agreement specifically includes the following non-financially secured improvements for South University District Phase 3 Major Subdivision” as listed in this agreement and depicted in blue, green, and orange highlights in Exhibit “A.” The cost estimates required in 38.270.060.D.1 are deferred until preparation of a replacement agreement in accordance with Sections 4 and 5 of this Agreement. Block 1 and 2 Off-Site Improvements (depicted in blue on Exhibit A) i.) South 17th Avenue from Kagy Boulevard to Stucky Road, including street, water, stormwater, and sidewalks adjacent to Blocks 1 and 2; ii.) State Street between South 17th Avenue and South 19th Avenue, including sewer, water, street lighting, and sidewalks adjacent to Block 1; iii.) Proportional parkland Improvements associated with each block; iv.) Storm water basins and associated mains v.) Cash-in-lieu of Improvements for a proportionate share of Kagy Boulevard; Block 3 Off-Site Improvements (depicted in orange on Exhibit A) i.) South 17th Avenue between Stucky Road and Arnold Street, including street, water, sewer, stormwater, sidewalks, and street lighting; ii.) Arnold Street between South 19th Avenue and South 14th Avenue, including street, water, sewer, stormwater, sidewalks, and street lighting; iii.) Proportional parkland Improvements associated with Block 3; Block 4 Off-Site Improvements (depicted in green on Exhibit A) i.) South 14th Avenue from Arnold Street to Student Drive, including street, water, sewer, 42 South University District Phase 3 Subdivision Public Infrastructure Improvements Agreement 4 stormwater, sidewalks, and street lighting; and ii.) the North half of Arnold Street from South 11th Avenue to South 19th Avenue, including street, water, sewer, stormwater, sidewalks, and street lighting; (depending on development timing for the property south of Arnold Street additional improvements for Arnold Street may be required.). iii.) Proportional parkland Improvements associated with Block 4. 3. Methods of Security, Time for Completion of Improvements, Additional Restrictions The Subdivider represents and agrees it will complete all of the Improvements as required by this Agreement and the Findings of Fact and Order for the Subdivision within fifteen (15) months of the date of recording of the final plat. In reliance on such representation, the City consents to the Subdivider filing the final plat prior to completion of the required Improvements. The Subdivider’s performance under this Agreement is specifically guaranteed and secured by the following methods of security: A. Common Subdivision Improvements: The Subdivider must maintain adequate financial security guaranteeing the completion of the Common Subdivision Improvements listed in Section 2.A. of this Agreement until the improvements are accepted by the City. The Common Subdivision Improvements are secured by an irrevocable standby Letter of Credit No. 21-008 for an amount of six million forty-eight thousand nine hundred nineteen and 43/100 dollars ($6,048,919.43), in a form acceptable to the City of Bozeman, from American Bank, Bozeman West PO Box 1970 1632 West Main Street Bozeman MT 59771-1970, which is one hundred and fifty (150) percent of the Estimated Cost of the Common Subdivision Improvements. The Letter of Credit constitutes the “Financial Security.” Subdivider acknowledges and agrees the Financial Security is specifically provided for the benefit of the City to guarantee and secure completion of the Improvements within the timeframes specified above and that the Financial Security may be drawn upon by the City without notice to the Subdivider and used by the City for completion of the Common Subdivision Improvements in its sole discretion, but only if the Subdivider fails to comply with the terms and conditions of this Agreement. 43 South University District Phase 3 Subdivision Public Infrastructure Improvements Agreement 5 Subdivider acknowledges the Financial Security expires on June 1, 2022 and is subject to automatic renewal in one year increments, but in no case is the Financial Security valid beyond June 1, 2023. Subdivider also acknowledges the issuer of the Financial Security may give notice to the City of its intent not to renew the Financial Security, but must do so no less than thirty (30) days prior to the expiration of the Financial Security or the Financial Security is extended for an additional year. The Subdivider agrees that if the issuer of the Financial Security provides notice to the City of non-renewal of the Financial Security prior to the completion of all of the Improvements, such non-renewal may place the Subdivider in breach of this Agreement. In such a case, the Subdivider must, within ten (10) days of the Subdivider acquiring information of the issuer’s intent not to renew the Financial Security, provide the City alternative financial security in a form acceptable to the City. Subdivider agrees that failure to provide alternative financial security within ten (10) days of Subdivider acquiring knowledge of the issuer’s non-renewal shall be deemed a material breach of this Agreement and the City may, without further notice to the Subdivider, draw upon the Financial Security for the costs of any outstanding Improvements at one hundred fifty percent of the City’s estimated cost of the Improvements, regardless of the cost estimates in Exhibit B and regardless of whether the timeframe for completion of the improvements has passed. Upon submission of fully documented invoices for the work performed on Common Improvements, and after the work has been inspected and certified for payment by Subdivider’s professional engineers and the City or its agents as necessary, the City may release a portion of the Letter of Credit for the work completed by the referenced invoices. B. Non-Financially Secured Improvements The non-financially secured improvements listed in section 2.B. above will be secured by granting of final permits (Certificate of Occupancy) and Restrictive Covenants filed with the Gallatin County Clerk and Recorder, which will be released after specified improvements identified in subsequent subdivision and/or zoning review(s) are either constructed or are subject to a subsequent improvements agreement and appropriate security. Installation of the Improvements and any work associated in this Agreement with any Block as provided in Section 2.B., must be completed and accepted by the City prior to occupancy of any building located within said block. Upon full completion and acceptance of the public 44 South University District Phase 3 Subdivision Public Infrastructure Improvements Agreement 6 improvements for a given block, the City will provide a writing to the landowner acknowledging completion and releasing the security. No Certificate of Occupancy will be issued until completion and acceptance of all Common Subdivision Improvements and the non-financially secured improvements associated with a given Block. 4. Transfer of Obligation A. Subdivider acknowledges and agrees that no delegation of performance required by this Agreement relieves the Subdivider of any duty to perform or any liability for the breach of that duty to complete the Improvements required for the South University District Phase 3 Major Subdivision. B. City and Subdivider acknowledge the intention of Subdivider to transfer the ownership of the parcels upon completion of final plat. The transfer of ownership of the parcels does not relieve Subdivider of obligation for installation of Improvements. The Subdivider may request and the City may, at its discretion, approve a transfer of obligations under this Agreement to a lot purchaser. Transfer of the obligations of this Agreement must be made by execution of a new improvements agreement and security between the new owner and the City. The new improvements agreement must address all elements included in 38.270.060, BMC and as it may be amended. Upon full execution of a new improvements agreement, the City may issue to Subdivider a writing releasing Subdivider from specified public infrastructure obligations incurred under subdivision review and secured by this agreement. The City may, at its discretion, accept a different method of security as part of an improvements agreement transferring obligations to a new owner. 5. Change in Security and Agreement A. City and Subdivider acknowledge the Subdivider’s intention to enable subsequent subdivision or site development to be approved and begin construction prior to completion of the improvements identified in this Agreement. City and Subdivider acknowledge and agree with the Subdivider’s intention to enable each identified Block to be able to complete associated public infrastructure identified in Section 2.B. in advance of approval of subsequent development or to undertake completion of public infrastructure as concurrent construction consistent with 45 South University District Phase 3 Subdivision Public Infrastructure Improvements Agreement 7 38.270.030.D the variance approved by the City Commission to allow issuance of a building permit prior to completion of all public infrastructure identified in Section 2, and the phasing plan included with this Agreement as Exhibit “A.” B. Should Subdivider or a subsequent owner wish to receive City approval to begin concurrent construction, a new Improvements Agreement specific to the applicable Block must be completed between the City and requesting party. The new Improvements Agreement must include appropriate security for all outstanding public infrastructure applicable to the Block as identified in Section 2.B. and not yet accepted by the City. 6. City Not Bound In Its Regulatory Authority Nothing in this Agreement alters the required review processes of Chapter 38 of the UDC. Subdivider agrees that nothing herein binds the City to make approvals in its regulatory authority in review of subdivision, zoning, building or other regulatory applications. 7. Inspection Representatives of the City shall have the right to enter upon the property at any reasonable time in order to inspect it and to determine if the Subdivider is in compliance with this Agreement, and the Subdivider shall permit the City and its representatives to enter upon and inspect the property at any reasonable time. 8. Default Time is of the essence of this Agreement. If the Subdivider defaults in or fails to fully perform any of its obligations in conformance with the time schedule under this Agreement, and such default or failure shall continue for a period of thirty (30) days after written notice specifying the default is deposited in the United States mail addressed to the Subdivider at RTR Holdings II, LLC, 22 Turtle Rock Court, Tiburon CA 94920, or such other address as the Subdivider shall provide to the City from time to time, without being completely remedied, satisfied, and discharged, the City may elect to enforce any of the following specified remedies: A) The City may, at its option, declare the financial guarantee to be forfeited and, without the consent of the Subdivider, secure the complete construction and inspection of the 46 South University District Phase 3 Subdivision Public Infrastructure Improvements Agreement 8 improvements described herein. The City's representative, contractors, and engineers shall have the right to enter upon the property and perform such work and inspection, and the Developer shall permit and secure any additional permission required to enable them to do so. In the event that any funds remain from the financial guarantee upon completion of all improvements, such funds shall be promptly returned to the Subdivider. B) The City may enforce any other remedy provided by law. 9. Waiver of Claims, Limitation of Liability, and Indemnification The Subdivider hereby expressly agrees to indemnify and hold the City harmless for and against all claims, costs and liability of every kind and nature, for injury or damage received or sustained by any person or entity in connection with, or on account of the performance of work at the development site and off-site pursuant to this Agreement. Subdivider further agrees to aid and defend the City in the event that it is named as a defendant in an action concerning the performance of work pursuant to this Agreement except where such suit is brought by the Subdivider. The Subdivider is not an agent or employee of the City. To the fullest extent permitted by law, Subdivider waives all claims against the City, its officers and employees, agents, insurers, and consultants any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the installation of public infrastructure improvements, including delay of completion of any aspect of the project that may affect South University District Phase 3 Major Subdivision. In addition to the above, Subdivider shall defend and indemnify the City from any claims brought against the City by any of the Subdivider’s partners, investors, creditors, lenders, agents, or any other entity associated with the Subdivider or South University District Major Phase 3 Subdivision for claims related to delay of or failure to complete the improvements as provided in Section 2. 10. Attorney Fees In the event it becomes necessary for either party to this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement, then the prevailing party shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel 47 South University District Phase 3 Subdivision Public Infrastructure Improvements Agreement 9 including the City Attorney. 11. Warranty The Subdivider shall warrant against defects of all Improvements and that these Improvements are made in a good and workman-like manner for a period of two (2) years from the date of their written acceptance by the City. 12. Governing Law This Agreement shall be construed according to the laws of the State of Montana. In the event of litigation concerning this Agreement, venue is in the Eighteenth Judicial District Court, Gallatin County, State of Montana. 13. Dispute Resolution A. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. B. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Governing Law provisions of this Agreement. 14. Modification or Alterations No modifications or amendment of this Agreement shall be valid, unless evidenced by a writing signed by the parties hereto. 15. Invalid Provision The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 48 South University District Phase 3 Subdivision Public Infrastructure Improvements Agreement 10 16. No Third-Party Beneficiary This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 17. No Assignment It is expressly agreed that the Subdivider shall not assign this Agreement in whole, or in part, without prior written consent to City. 18. Successors Except as provided in paragraph seventeen (17), this Agreement shall be binding upon, ensure to the benefit of, and be enforceable by the parties hereto and their respective heirs, successors and assigns. 19. Counterparts To facilitate execution of this Agreement, the parties may execute and exchange counterparts of signature pages by facsimile or via e-mail by .pdf (or similar format), and any such facsimile or email counterpart signatures are binding on the party providing the signature and may be combined to form one complete document. 20. Integration This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 21. Filing The Subdivider shall have this Agreement recorded in the Office of the Gallatin County Clerk and Recorder at the same time the Final Subdivision Plat for the South University District Phase 3 Major Subdivision is filed. 49 South University District Phase 3 Subdivision Public Infrastructure Improvements Agreement 11 SUBDIVIDER RTR HOLDINGS II, LLC By: Three River Capital, LLC, its manager By: ______________________________________ Name:____________________________________ Title: ____________________________________ STATE OF ) :ss COUNTY OF ) On this ________ day of ____________________, 2021, before me, the undersigned, a Notary Public for the State of ____________________, personally appeared _____________________, known to me to be the landowner that executed the within instrument, and acknowledged to me that he executed the same as _____________________ of Three River Capital LLC, and on behalf of RTR Holdings II, LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. ________________________________________ ________________________________________ (SEAL) (Printed & Signed name) Notary Public for the State of Montana Residing at _______________________________ My Commission Expires:____________________ (Use four digits for expiration year) 50 South University District Phase 3 Subdivision Public Infrastructure Improvements Agreement 12 THE CITY OF BOZEMAN _______________________________ Martin Matsen Director City of Bozeman Community Development STATE OF MONTANA) :ss County of GALLATIN ) On this _______ day of _________________, 2021, before me, a Notary Public for the State of Montana, personally appeared Martin Matsen, known to me to be the person described in and who executed the foregoing instrument as Director of the City of Bozeman Department of Community Development, whose name is subscribed to the within instrument and acknowledged to me that they executed the same for and on behalf of said City. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. ________________________________________ ________________________________________ (SEAL) (Printed & Signed name) Notary Public for the State of Montana Residing at Bozeman My Commission Expires:____________________ (Use four digits for expiration year) 51 52 Engineers and Land Surveyors 3530 Centennial Drive, Helena, MT 59601 | phone: 406-442-8594 851 Bridger Drive, Suite 1, Bozeman, MT 59715 | phone: 406-522-8594 2223 Montana Avenue, Suite 201, Billings, MT 59101 | phone: 406-601-4055www.seaeng.com SUD Phase 3 Major Subdivision Improvements Agreement Estimate - Common Subdivision Improvements (CSI) PROJECT: CSI - Phase 1: Subdivision Utilities, and Park 4 Landscaping SEA PROJECT No: 1358-01016 DATE: 5/13/2021 Item#General Qty Unit Unit Price Total Cost 3001 Mobilization, Bonding, and Insurance 1 lump $60,000.00 $60,000.00 3002 Install Errosion Control Measures 1 lump $30,000.00 $30,000.003003 SWPPP Maintenance 1 lump $30,000.00 $30,000.00 3004 SWPPP Administration 24 month $750.00 $18,000.00 3005 Traffic Control 1 lump $30,000.00 $30,000.003006 Topsoil Stripping 15" Depth & Stockpile 5,998 cy $23.00 $137,954.00 3007 Site Grading Excavation 159 cy $4.00 $636.00 3008 Site Grading Embenkment Fill 6,288 cy $4.00 $25,152.00 General Total $331,742.00 Water Improvements Qty Unit Unit Price Total Cost 3101 Connect to Existing 12" Main 1 ea $1,500.00 $1,500.00 3102 Connect to Existing 24" Main 1 ea $2,000.00 $2,000.00 3103 12" Water Main - Zinc Coated Ductile Iron 1,513 lf $96.00 $145,248.00 3104 8" Water Main - Zinc Coated Ductile Iron 411 lf $86.00 $35,346.00 3105 6" Main - Zinc Coat Ductile Iron 50 lf $66.00 $3,300.00 3106 12" x 8" Cross 1 ea $950.00 $950.00 3107 12" Valve 6 ea $3,850.00 $23,100.00 3108 8" Valve 2ea$2,500.00 $5,000.00 3109 8" x 6" Tee 3ea $680.00 $2,040.00 3110 Blow Off Hydrant Assembly 4 ea $2,750.00 $11,000.00 3111 Fire Hydrant Assembly 7 ea $5,900.00 $41,300.00 3112 Existing Utility Crossing 1 ea $1,000.00 $1,000.00 3113 2" Type "K" Service (To Property Line) 44 lf $65.00 $2,860.003114 Remove Existing Blow Off Hydrant 1 ea $1,500.00 $1,500.00 3115 Remove Existing Hydrant 1 ea $1,000.00 $1,000.00 3116 Cut and Cap Sprinkler Lines at Property Line 7 ea $250.00 $1,750.00Water Improvements Total $278,894.00 Sewer Improvements Qty Unit Unit Price Total Cost 3201 Connect to Existing Manhole 1 ea $4,100.00 $4,100.00 3202 8" Sewer Main 1,818 lf $40.00 $72,720.00 3203 10" Sewer Main 482 lf $45.00 $21,690.00 3204 Standard 48" Manhole, 5' Depth 7 ea $3,500.00 $24,500.00 3205 Extra Depth Standard 48" Manhole 44 vf $450.00 $19,800.00 3206 Existing Utility Crossing 3 ea $1,000.00 $3,000.00 3207 Sewer Main Stub 4 ea $2,850.00 $11,400.00 3208 Temporary All-Weather Access Road 977 lf $20.00 $19,540.00 3209 Sawcut Asphalt 1,093 lf $3.00 $3,279.00 3210 Demo and Remove Asphalt 5,138 sf $1.25 $6,422.50 3211 Flowable Fill 140 cy $270.00 $37,800.00 3212 Import Pit Run Gravel - 18" Section 437 cy $20.00 $8,740.00 3213 Import Finish Gravel - 6" Section 110 cy $30.00 $3,300.00 3214 Shoulder Gravel - 10" Section 45 cy $50.00 $2,250.00 3215 Pavement Patch - 4" Section 5,138 sf $3.00 $15,414.00 Sewer Improvements Total $253,955.50 Storm Drainage Improvements Qty Unit Unit Price Total Cost 3301 36" Standard Storm Drain Inlet, 5' Depth 4 ea $3,850.00 $15,400.003302 48" Standard Manhole, 5' Depth 2 ea $3,850.00 $7,700.00 3303 48" Combination Manhole and Curb Inlet, 5' Depth 2 ea $4,250.00 $8,500.00 3304 60" Standard Manhole, 5' Depth 2 ea $5,200.00 $10,400.003305 72" Standard Manhole, 5' Depth 2 ea $6,000.00 $12,000.00 3306 72" Combination Manhole and Curb Inlet, 5' Depth 1 ea $6,400.00 $6,400.00 3307 Extra Depth 72" Manhole 4.27 vf $550.00 $2,348.50 3308 15" PVC Storm Main 384 lf $58.00 $22,272.00 3309 18" PVC Storm Main 76 lf $65.00 $4,940.00 3310 24" PVC Storm Main 402 lf $85.00 $34,170.00 3311 30" PVC Storm Main 422 lf $134.00 $56,548.00 3312 36" PVC Storm Main 182 lf $134.00 $24,388.00 3313 Detention Pond Cut & Fill On Site 1,000 cy $8.00 $8,000.00 3314 Detention Pond Final Stabilization 1 ls $5,000.00 $5,000.00 3315 Detention Pond Outfall Assembly 1 ea $3,850.00 $3,850.00 3316 4" Perforated Pond Underdrain 755 lf $10.00 $7,550.00 3317 45" x 73" RCP Arch Culvert with FES (60" Round Equivalent) 128 lf $525.00 $67,200.00 3318 Adjust Existing Rim and Casting 1 ea $1,000.00 $1,000.00 3319 Existing Utility Crossing 11 ea $1,000.00 $11,000.00 3320 Remove Existing Trees 1 lump $3,500.00 $3,500.00 3321 15" RCP FES 5 ea $1,000.00 $5,000.00 3322 45" x 73" RCP FES 2 ea $4,500.00 $9,000.00 3323 36" RCP FES 1 ea $3,000.00 $3,000.00 Storm Drainage Improvements Total $329,166.50 53 Road Improvements Qty Unit Unit Price Total Cost 3401 Excavate to Subgrade 1,668 cy $4.00 $6,672.00 3402 Place Embankment Fill 1,645 cy $4.00 $6,580.00 3403 Prep Subgrade 9,584 sy $1.50 $14,376.00 3404 Geotextile Fabric (Geotex 3 x 3HF) 9,584 sy $4.50 $43,128.00 3405 Pit Run Sub-Base 4,792 cy $30.00 $143,760.00 Road Improvements Total $214,516.00 Landscaping, and Irrigation Piping Improvements Qty Unit Unit Price Total Cost 3501 15" PVC Irrigation Main 1,538 lf $58.00 $89,204.00 3502 48" Standard Manhole - Irrigation 8 ea $3,850.00 $30,800.00 3503 Adjust Existing Rim and Casting 2 ea $1,000.00 $2,000.00 3504 Park 4 Irrigation 42,893 sf $1.25 $53,616.25 3505 Park 4 Seeding (Water Course Mix) 36,169 sf $0.50 $18,084.50 3506 Park 4 Seeding (Upland and Lawn Mixes) 42,893 sf $0.25 $10,723.25 3507 Park 4 Trees 26 ea $700.00 $18,200.00 Landscaping, and Irrigation Piping Improvements Total $222,628.00 Total Construction Cost $1,630,902.00 54 Engineers and Land Surveyors 3530 Centennial Drive, Helena, MT 59601 | phone: 406-442-8594 851 Bridger Drive, Suite 1, Bozeman, MT 59715 | phone: 406-522-8594 2223 Montana Avenue, Suite 201, Billings, MT 59101 | phone: 406-601-4055www.seaeng.com SUD Phase 3 Major Subdivision Improvements Agreement Estimate - Common Subdivision Improvements (CSI) PROJECT: CSI - Phase 2: 19th Avenue Widening, Signalization, and Landscaping SEA PROJECT No: 1358-01016 DATE: 5/13/2021 Item#General Qty Unit Unit Price Total Cost 3001 Mobilization, Bonding, and Insurance 1 ls $56,000.00 $56,000.00 3002 Traffic Control 1 ls $30,000.00 $30,000.00General Total $86,000.00 Water Improvements Qty Unit Unit Price Total Cost3101 Connect to Existing 24" Main 5 ea $3,500.00 $17,500.00 3102 8" Water Main - Zinc Coated Ductile Iron (State Street Stub) 25 lf $86.00 $2,150.00 3103 6" Water Main - Zinc Coated Ductile Iron 33 lf $66.00 $2,178.00 3104 8" Valve (State Street Stub) 1 ea $1,650.00 $1,650.00 3105 Blowoff Hydrant Assembly (State Street Stub) 1 ea $2,750.00 $2,750.00 3106 Fire Hydrant Assembly 4 ea $4,750.00 $19,000.00 3107 Adjust Existing Hydrant 2 ea $1,000.00 $2,000.00 3108 Existing Utility Crossing 1 ea $1,000.00 $1,000.00 Water Improvements Total $48,228.00 Storm Drainage Improvements Qty Unit Unit Price Total Cost 3201 Connect to Existing System 2 ea $1,500.00 $3,000.00 3202 48" Combination Manhole and Curb Inlet, 5' Depth 2 ea $4,250.00 $8,500.00 3203 18" PVC Storm Main 30 lf $30.00 $900.00 3204 Plug and Abandon Existing Inlet Drain 1 ea $1,500.00 $1,500.00 3205 Existing Utility Crossing 3 ea $1,000.00 $3,000.00 Storm Drainage Improvements Total $16,900.00 Item#Road Improvements Qty Unit Unit Price Total Cost3301 Subgrade Prep 3,895 sy $1.50 $5,842.50 3302 Geotextile Fabric (Geotex 3 x 3HF) 3,895 sy $3.00 $11,685.00 3303 Pit Run Sub-Base 2,597 cy $30.00 $77,910.003304 Crushed Base 765 cy $45.00 $34,425.00 3305 Curb and Gutter 2,247 lf $16.00 $35,952.00 3306 Double Gutter 1,050 sf $16.00 $16,800.00 3307 5" Pavement 28,307 sf $1.80 $50,952.60 3308 Chip Seal 28,307 sf $0.75 $21,230.25 3309 Curb Paint - Epoxy Based 2,246 lf $8.80 $19,764.80 3310 4" White Solid Stripe - Epoxy Paint 1,435 lf $2.20 $3,157.00 3311 4" White Skip Stripe - Epoxy Paint 864 lf $2.20 $1,900.80 3312 4" Double Yellow Solid - Epoxy Paint 3,667 lf $3.30 $12,101.10 3313 8" White Dashed Striped - Thermoplastic 783 lf $20.00 $15,660.00 3314 8" White Solid Stripe - Thermoplastic 1,894 lf $20.00 $37,880.00 3315 24" White Stop Bar - Thermoplastic 34 lf $68.00 $2,312.00 3316 24" White Solid Stripe - Epoxy 270 lf $65.00 $17,550.00 3317 24" Yellow Solid Stripe - Epoxy 189 lf $67.00 $12,663.00 3318 Thermoplastic - Words and Symbols 422 sf $62.00 $26,164.00 3319 Pavement Marking Removal 1 lump $16,550.00 $16,550.00 3320 Signage 4 ea $650.00 $2,600.00 3321 Remove and Reset Sign 2 ea $750.00 $1,500.00 3322 Replace Sign on Existing Post 3 ea $350.00 $1,050.00 3323 Install Signs on Signal Poles/Mast Arms 10 ea $500.00 $5,000.00 3324 Sign Removal 2 ea $250.00 $500.00 3325 Remove Curb Delineator 16 $100.00 $1,600.003326 Demo Existing Sidewalk (South of Kagy) 750 sf $2.00 $1,500.00 3327 Sawcut Asphalt 2,289 lf $3.00 $6,867.00 3328 Demo and Remove Asphalt 2,289 sf $1.00 $2,289.00Road Improvements Total $443,406.05 Sidewalk Improvements Qty Unit Unit Price Total Cost 3401 Handicap Ramps 250 sf $12.00 $3,000.00 3402 Detectable Warning Surface Pads 2' x 5' 4 ea $685.00 $2,740.00 3403 4" Thick Concrete Sidewalk, Including Base 19,722 sf $5.50 $108,471.00 Sidewalk Improvments Total $114,211.00 Landscaping, and Irrigation Piping Improvements Qty Unit Unit Price Total Cost 3501 30" PVC Irragation Main 2,009 lf $134.00 $269,206.00 3502 72" Standard Manhole, 5' Depth - Irrigation 9 ea $6,000.00 $54,000.00 3503 Extra Depth 72" Manhole - Irrigation 7.8 vf $550.00 $4,290.00 3504 Fernco (From 30" PVC to 30" RCP) 1 ea $1,000.00 $1,000.00 3505 30" RCP FES with Trash Gate 1 ea $3,500.00 $3,500.00 3506 Boulevard Irrigation 27,449 sf $1.25 $34,311.25 3507 Boulevard Seeding 27,449 sf $0.25 $6,862.25 3508 Boulevard Trees 23 23 $700.00 $16,100.00 3509 Abandon Existing Ditch 1 lump $5,000.00 $5,000.00 Landscaping, and Irrigation Piping Improvements Total $394,269.50 55 Lighting, Dry Utilities, and Traffic Signal Improvements Qty Unit Unit Price Total Cost 3601 Structural Concrete Pole Foundations 8 cy $2,540.00 $20,320.00 3602 Conduit, 1.5" PVC, Trench 70 lf $19.00 $1,330.00 3603 Conduit, 2.0" PVC, Trench 1,750 lf $13.25 $23,187.50 3604 Conduit, 2.0" PVC, Sleeve 150 lf $14.35 $2,152.50 3605 Pull Box, Concrete-Composite Type 1 11 ea $1,215.00 $13,365.00 3606 Pull Box, Concrete-Composite Type 2 1 ea $1,435.00 $1,435.00 3607 Cable, Copper, 16c No. 14AWG (Signals) 930 lf $4.40 $4,092.00 3608 Cable, Copper, 7c No. 14AWG (Signals) 550 lf $2.90 $1,595.00 3609 Cable, Copper, 5c No. 14AWG (Signals) 60 lf $2.70 $162.00 3610 Cable, Radar Detector 1,200 lf $4.50 $5,400.00 3611 Conductor, Copper, #10 AWG, Lighting & Ground 7,020 lf $1.11 $7,792.20 3612 Conductor, Copper, #8 AWG, Lighting 830 lf $1.20 $996.00 3613 Signal Std. Type 1-100 2 ea $1,105.00 $2,210.00 3614 Signal Std. w/40' Mast Arm (Type 2A) 1 ea $18,750.00 $18,750.00 3615 Light Std. w/15' Lumin. Mast-40' Mount (Type 10-A) 8 ea $8,060.00 $64,480.00 3616 Supply & Install Controller Cabinet (Type P) & Terminate Field Wiring 1 ea $49,750.00 $49,750.00 3617 Supply & Install Controller Type "P" 1 ea $8,830.00 $8,830.003618 Supply & Install Emergency Preemption Detector (Model 722) 1 ea $2,760.00 $2,760.00 3619 Supply & Install Detector-Radar/Presence 4 ea $12,150.00 $48,600.00 3620 Luminaire Assembly LED - Type 3M-180W 9 ea $1,435.00 $12,915.003621 12" Red x12" Yellow x12" Green Traffic Signal Ind. 8 ea $1,765.00 $14,120.00 3622 12" Red x12" Yellow Steady x12" Yellow Flash Traffic Signal Ind. 1 ea $1,765.00 $1,765.00 3623 12" Red x12" Yellow Steady x12" Yellow Flash x12" Green Traffic Signal Ind. 3 ea $2,450.00 $7,350.00 3624 12" Red x12" Yellow x12" Green x12" Yellow/Green Traffic Signal Ind. 1 ea $2,760.00 $2,760.00 3625 Pedestrian Signal Ind., Count Down, 12" Symbols 2 ea $1,655.00 $3,310.00 3626 Single Underground Electrical Service 1 ea $4,000.00 $4,000.00 3627 Modify Existing Single Underground Electrical Service 1 ea $4,000.00 $4,000.00 3628 Pedestrian Push Buttons - Tactile 2 ea $1,875.00 $3,750.00 3629 Misc. Remove & Salvage 1 lump $2,600.00 $2,600.00 3630 Remove & Reset Existing Type 10-A Luminaire Pole & Mast Arm 1 ea $3,750.00 $3,750.00 3631 Remove & Reset Existing Type 3A Signal Pole 1 ea $15,500.00 $15,500.00 Lighting, Dry Utilities, and Traffic Signal Improvements Total $353,027.20 Total Construction Cost $1,456,041.75 56 Engineers and Land Surveyors 3530 Centennial Drive, Helena, MT 59601 | phone: 406-442-8594 851 Bridger Drive, Suite 1, Bozeman, MT 59715 | phone: 406-522-8594 2223 Montana Avenue, Suite 201, Billings, MT 59101 | phone: 406-601-4055www.seaeng.com SUD Phase 3 Major Subdivision Improvements Agreement Estimate - Common Subdivision Improvements (CSI) PROJECT: CSI - Phase 3: Subdivision Paving, Lighting, and Boulevard Landscaping SEA PROJECT No: 1358-01016 DATE: 5/13/2021 Item#General Qty Unit Unit Price Total 3001 Mobilization, Bonding, and Insurance 1 ls $40,000.00 $40,000.00 3002 Traffic Control 1 ls $5,000.00 $5,000.00General Total $45,000.00 Item#Road Improvements Qty Unit Unit Price Total Cost3101 Crushed Base 1,347 cy $45.00 $60,615.00 3102 Curb and Gutter 3,377 lf $16.00 $54,032.00 3103 Roundabout and Splitter Island Curb 793 lf $30.00 $23,790.00 3104 Pavement - 4" (Stucky) 67,642 sf $1.60 $108,227.20 3105 Utility Sleeves 2,023 lf $12.00 $24,276.00 3106 Curb Paint - Epoxy Based 3,388 lf $8.80 $29,814.40 3107 4" White Solid Stripe - Epoxy Paint 3,883 lf $2.20 $8,542.60 3108 4" Double Yellow Solid - Epoxy Paint 3,009 lf $3.30 $9,929.70 3109 8" White Skip Stripe - Epoxy Paint 115 lf $20.00 $2,300.00 3110 Thermoplastic - Words and Symbols 495 sf $62.00 $30,690.00 3111 8" Crosswalk - Thermoplastic 160 lf $20.00 $3,200.00 3112 24" Crosswalks - Thermoplastic 208 lf $65.00 $13,520.00 3113 24" White Stop Bar - Thermoplastic 30 lf $65.00 $1,950.00 3114 24" Yellow Stripe - Epoxy 60 lf $67.00 $4,020.00 3115 24" White Solid Stripe - Epoxy 116 lf $65.00 $7,540.00 3116 Signage 48 ea $650.00 $31,200.00 3117 Surface Mount Curb Delineators in Splitter Islands 21 ea $350.00 $7,350.00 Road Improvements Total $420,996.90 Sidewalk Improvements Qty Unit Unit Price Total Cost 3201 Handicap Ramps 425 sf $12.00 $5,100.00 3202 Detectable Warning Surface Pads 2' x 5' 16 ea $685.00 $10,960.003203 6" Thick Concrete Sidewalk, Including Base 21,012 sf $6.15 $129,223.80 3204 6" Thick Concrete Approach, Including Base 1,004 sf $9.00 $9,036.00 3205 8" Reinforced Concrete Roundabout Apron 2,991 sf $11.75 $35,144.25 3206 4" Splitter Island Concrete 900 sf $5.86 $5,274.00 Sidewalk Improvments Total $194,738.05 Landscaping Improvements Qty Unit Unit Price Total Cost 3301 Boulevard Irrigation 32,544 sf $1.25 $40,680.00 3302 Boulevard Seeding 32,544 sf $0.25 $8,136.00 3303 Boulevard Trees 57 ea $700.00 $39,900.00 Landscaping Imporvements Total $88,716.00 Lighting, and Dry Utility Improvements Qty Unit Unit Price Total Cost 3401 Structural Concrete Pole Foundations 4 cy $2,540.00 $10,160.00 3402 Conduit, 2.0" PVC, Trench 1,704 lf $13.25 $22,578.00 3403 Conduit, 2.0" PVC, Push 21 lf $25.00 $525.00 3404 Conduit, 2.0" PVC, Sleeve 143 lf $14.35 $2,052.05 3405 Pull Box, Concrete-Composite Type 1 21 ea $1,215.00 $25,515.00 3406 Pull Box, Concrete-Composite Type 2 1 ea $1,435.00 $1,435.00 3407 Conductor, Copper, #8 AWG, Ground 1,868 lf $1.40 $2,615.20 3408 Conductor, Copper, #6 AWG, Lighting 3,736 lf $1.75 $6,538.00 3409 Light Std. w/6' Lumin. Mast-30' Mount (Type 10-A) 16 ea $6,500.00 $104,000.003410 Luminaire Assembly LED - Type 3M-72W 16 ea $1,300.00 $20,800.00 Lighting, and Dry Utility Improvements Total $196,218.25 Total Construction Cost $945,669.20 57 Prepared for: May 18, 2021 Stahly Engineering & Associates South University District Phase 3 Major Subdivision Phasing Plan for Concomitant Construction 58 South University District Phase 3 Major Subdivision Phasing Plan to Facilitate Concomitant Construction Introduction The intent of this proposed phasing plan is to establish a basis for a “concomitant construction” approach—permitting the simultaneous, or near-to-simultaneous construction, of various infrastructure elements and off and on-site improvements within SUD Phase 3 and its Restricted Blocks 1-4. Herein we identify key components of the South University District (SUD) Ph 3 Major Subdivision that would be considered ‘Common Subdivision Improvements’ and are integral connections within the City of Bozeman’s transportation and utility networks. These Common Subdivision Improvements would need to be financially guaranteed and installed before any grant of occupancy could occur on any of the 4 ‘Restricted’ lots on Blocks 1-4. If this Plan is approved, the City is being asked to provide a binding, written authorization for “concomitant construction” and to permit a notice regarding said authorization on the SUD Phase 3 Final Plat. Common Subdivision Improvements Certain elements critical to the subdivision’s utility and transportation network have been identified, with input from the City of Bozeman, that would be required to be installed by the property developers—herein these are referred to as "Common Subdivision Improvements” and shown in yellow on the enclosed “Infrastructure Improvements Phasing Exhibit”. These Common Subdivision Improvements generally include extending Stucky Road from South 19th Ave east to the round-about at South 14th Ave, and widening South 19th Ave along the entire western project boundary between Kagy Blvd and Arnold St. They also include installing storm drainage improvements within the Park 4 lot that receives runoff from Stucky and 19th Ave. A specific list of the Common Subdivision Improvements follows:  Widen S 19th Ave from Kagy Blvd to Arnold St o install 10-ft wide concrete sidewalk o Pipe existing irrigation ditch o Install irrigation, grass and trees within boulevard o Improve existing traffic signal at Stucky Rd and S 19th Ave o Install lighting along 19th Ave  Stucky Road from 19th Ave to 14th Ave- 48-ft width 59 o Stucky Road sidewalks on both sides of City Park, and along north side of road between 17th Ave and 19th Ave o Install street lighting  Stucky Road 12” water main between 19th Ave and 14th Ave—approximately 1,510 LF  Stucky Road storm o Approximately 100 LF of 18” storm main o Approximately 340 LF of 24” storm main o Approximately 340 LF of 30” storm main o Approximately 190 LF of 36” storm main o 8 catch basins o 5 storm manholes  Stucky Road 8” sewer main—approximately 403 LF  S 17th Ave sewer main o Connect to existing sanitary sewer main at the intersection of Kagy Blvd and Willow Way o Install approx. 490 LF of 10” sewer main within Kagy Blvd o Install approx. 1,414 LF of 8” sewer main within 17th Ave to the intersection of Stucky Rd (with all-weather access road to manholes in 17th Ave ROW as needed) Parkland Improvements As mentioned previously, the 1.83-ac ‘City Park 4 ’lot will contain the stormwater detention pond that accepts runoff from S 19th Ave, Stucky Rd, and S 17th Ave. The detention pond takes up 0.431 acres, but the remaining 1.399 acres will be seeded, landscaped, and irrigated. Miscellaneous Improvements There is an existing 20-ft irrigation easement on the property that will be relocated within the Park 3 and Park 4 lots. The existing shallow ditch will be piped in a new 15” PVC pipe along the western edge of the Park 3 and Park 4 lots. 60 Blocks 1 & 2 Improvements Due to their proximity to each other and the initial ‘Common Subdivision Improvements ’the Block 1 & 2 Off-Site Improvements will both need to be constructed at the same time. Depending on the timing of development, the first of these two Blocks to develop first will need to construct the developments for both and create a payback district for the second developer. Block 1 & 2 Off-Site Improvements Block 1 & 2 Off Site Improvements proposed in this phasing plan and shown in blue on the enclosed ‘Infrastructure Improvements Phasing Exhibit ’generally include extending 17th Ave between Stucky Road and Kagy Blvd, and the segment of State Street from South 19th Ave east to South 17th Ave. They also include installing storm drainage improvements within the four ‘Common Open Space’ lots (two on Block 1 and two on Block 2) lot that receive runoff from 17th Ave and State Street. A specific list of the Common Subdivision Improvements follows:  S 17th Ave from Stucky Rd to Kagy Blvd- 47-ft width—approximately 1,400 LF  State St from S 19th Ave to S 17th Ave- 35-ft width—approximately 650 LF  8” Water mains in State St and S 17th Ave—approximately 740 LF & 1,404 LF respectively  8” Sanitary Sewer mains in State St—approximately 388 LF  Buried Stormwater retention basins (4) and associated mains  5’ concrete sidewalks along east and west sides of S 17th Ave  5’ concrete sidewalks along the north and south sides of State St.  10’ temporary* or permanent asphalt sidewalk along Kagy Blvd between S 19th Ave and S 17th Ave (*depending on timing of improvements—if before Kagy Blvd reconstruction, a temporary asphalt path is required) Parkland Improvements Parkland requirements will be determined by the nature of the development(s) proposed within each of the Blocks at the Site Plan level, but the South University District Property Owners Association (POA) will require each block to develop a proportionate share of the remaining undeveloped 14.01-acre ‘City Park 3’ lot. Block 1 will be required to develop 18.2% of Park 3, or 2.43 acres; Block 2 will be required to develop 19.8% of Park 3, or 2.65 acres. Miscellaneous Improvements Development on either Block 1 or Block 2 will trigger the cash-in-lieu of Improvements (CILI) requirements for the subdivision’s proportionate share of Kagy Boulevard. 61 Block 3 Improvements The Block 3 Off-Site Improvements include the adjacent streets to the south and east, as well as the portion of Arnold Street along the south boundary of the ‘City Park 3’ lot. Block 3 Off-Site Improvements Block 3 Off Site Improvements proposed in this phasing plan and shown in orange on the enclosed ‘Infrastructure Improvements Phasing Exhibit ’generally include extending 17th Ave between Stucky Road and Arnold St, and constructing Arnold St. from South 19th Ave east to South 14th Ave. A specific list of the Common Subdivision Improvements follows:  S 17th Ave from Stucky Rd to Arnold St- 47-ft width  Arnold St from S 19th Ave to S 14th Ave- 35-ft width  8” Water mains in Arnold St and S 17th Ave  8” Sanitary Sewer mains in Arnold St and S 17th Ave  Stormwater catch basins and associated mains  6’-wide, 6” thick concrete sidewalk along park frontage on east side of S 17th Ave and north side of Arnold St. Parkland Improvements Parkland requirements will be determined by the nature of the development(s) proposed within each of the Blocks at the Site Plan level, but the South University District Property Owners Association (POA) will require each block to develop a proportionate share of the remaining undeveloped 14.01-acre ‘City Park 3’ lot. Block 3 will be required to develop 37.3% of Park 3, or 4.98 acres. Miscellaneous Depending on the timing of development of Block 3 and/or the property to the south of Arnold St, the first to develop will need to construct both halves of Arnold St and create a payback district for the second developer. 62 Block 4 Improvements The Block 4 Off-Site Improvements generally include constructing the segment of S 14th Avenue and Arnold Street adjacent to the property. Depending on the timing of development, the first of these two Blocks to develop first will need to construct the developments for both and create a payback district for the second developer. Block 4 Off-Site Improvements Block 4 Off Site Improvements proposed in this phasing plan and shown in green on the enclosed ‘Infrastructure improvements Phasing Exhibit ’generally include extending 14th Ave between Student Dr and Arnold St, and the segment of Arnold Street from S 11th Ave east to S 14th Ave. A specific list of the Common Subdivision Improvements follows:  S 14th Ave from Arnold St to Student Dr- 35-ft width  Arnold St from S 11th Ave to S 14th Ave- 35-ft width  8” Water mains in Arnold and S 14th Ave  8” Sanitary Sewer mains in Arnold St and S 14th Ave  Stormwater detention/retention basins and associated mains Parkland Improvements Parkland requirements will be determined by the nature of the development(s) proposed within each of the Blocks at the Site Plan level, but the South University District Property Owners Association (POA) will require each block to develop a proportionate share of the remaining undeveloped 14.01-acre ‘City Park 3’ lot. Block 4 will be required to develop 24.7% of Park 3, or 3.30 acres. Miscellaneous Depending on the timing of development of Block 4 and/or the property to the south of Arnold St, the first to develop will need to construct both halves of Arnold St and create a payback district for the second developer. South 11th Ave was constructed in 2018 and there is a payback district associated with that project allocated to Block 4. 63 STATE STREETSOUTH 17TH AVE KAGY BLVDSOUTH 19TH AVESOUTH 17TH AVESTUCKY ROADSTUCKY ROADSOUTH 14TH AVE STUDENT DRIVESOUTH 11TH AVESTUCKY ROADARNOLD STREETSOUTH 11TH AVE SOUTH 14TH AVE SOUTH 17TH AVEARNOLD STREETSOUTH 19TH AVE Proposed RestrictedBlock 1Lot 18.20 AcresProposed Block 1 CommonOpen Space Lot 10.09 AcresProposed Block 2 CommonOpen Space Lot 10.07 AcresProposed Block 1 CommonOpen Space Lot 20.07 AcresProposed RestrictedBlock 2Lot 18.60 AcresProposed Block 2 CommonOpen Space Lot 20.07 AcresProposed Right of Way6.37 Acres Proposed RestrictedBlock 3Lot 118.86 AcresProposed RestrictedBlock 4Lot 111.89 AcresCity Park 41.83 AcresCity Park 314.01 AcresExtents of Subdivisionimprovements to becompleted beforeoccupancy of any lot inthe SUD Ph 3 MajSubdivisionExtents of off-site improvements to be completed beforeoccupancy of Block 4 in the SUD Ph 3 Maj SubdivisionExtents of off-siteimprovements to becompleted beforeoccupancy of Block 3in the SUD Ph 3 MajSubdivisionExtents of off-siteimprovements to becompleted beforeoccupancy of Blocks 1or 2 in the SUD Ph 3Maj SubdivisionBlock 2 Portion of City Park 319.8%Block 4 Portion of City Park 324.7%Block 3 Portion of City Park 337.3%Block 1 Portion of City Park 4100%Block 1 Portion of City Park 318.1%P R E L IM I N A R YFOR SUBDIVISION REVIEWPROFESSIONALENGINEERS &SURVEYORS1 OF 1INFRASTRUCTUREIMPROVEMENTSPHASING EXHIBITSUD PHASE 3SOUTH UNIVERSITYDISTRICTSTAHLYENGINEERING& ASSOCIATESRTR HOLDINGS II, LLCSUBDIVISIONIMPROVEMENTSBLOCK 3BLOCKS 1 & 2BLOCK 4PROPERTY BOUNDARY64 WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL IMPROVEMENT DISTRICTS FOR RTR Holdings II, LLC We, the undersigned Owners of the real property situated in the County of Gallatin, State of Montana, and more particularly described as follows: South University District Phase 3 Major Subdivision IN CONSIDERATION of receiving Final Plat Approval from the City of Bozeman, along with accompanying rights and privileges and for other and valuable consideration, the receipt of which is hereby acknowledged, in recognition of impacts to the City transportation and infrastructure systems that will be generated by the development of the above-described property at South University District Phase 3 Major Subdivision, have waived and do hereby for ourselves, our heirs, personal representatives, successors and assigns, the right to protest the creation of one or more special improvement districts for the construction of: 1. Street improvements to South 19th Avenue including paving, curb/gutter, sidewalk, lighting and storm drainage, 2. Street improvements to West Kagy Boulevard including paving, curb/gutter, sidewalk, lighting and storm drainage, and 3. Intersection improvements to the intersection of South 19th Avenue and West Kagy Boulevard or to make any written protest against the proposed work or against the extent or creation of the districts to be assessed in response to a duly passed resolution of intention to create one or more special improvement districts which would include the above-described property. In the event an SID is not utilized for the completion of these improvements, the developer agrees to participate in an alternate financing method for the completion of said improvements on a fair share, proportionate basis as determined by square footage of property, taxable valuation of the property, traffic contribution from the development or a combination thereof. This waiver shall be a covenant running with the land and shall not expire with the dissolution of the limited partnership, provided however this waiver shall apply to the lands herein described. The terms, covenants and provisions of the Waiver shall extend to, and be binding upon the successors-in-interest and assigns of the parties hereto. 65 DATED this _____ day of ____________________, 20 . ______________________________ By Title STATE OF MONTANA ) :ss ) County of Gallatin ) On this _____ day of _______________, 20 , before me, a Notary Public for the State of Montana, personally appeared _______________________________ known to me to be the _________________________ of , the corporation that executed the foregoing Waiver of Right to Protest, and acknowledged to me that he/she executed the same for and on behalf of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and set my seal the day and year first above written. (SEAL) Notary Public for the State of Montana (Printed Name) Residing at My Commission expires: / /20 66 After Recording, return to: City of Bozeman P.O. Box 1230 Bozeman, MT 59771 DRAINAGE EASEMENT RTR Holdings II, LLC, by Three Rivers Capital, LLC, its manager, , GRANTOR(S), in consideration of One Dollar ($1.00) and other good and valuable consideration, receipt of which is acknowledged, grants to the City of Bozeman, a municipal corporation of the State of Montana, with offices at 121 North Rouse Avenue, Bozeman Montana 59715, GRANTEE, its successors and assigns, an easement for public drainage purposes, in, through and across the following described real property situated in Gallatin County, Montana, more particularly described as follows: Common Open Space Lot 1, Block 1 of the South University District Phase 3 Major Subdivision (Document No. ), records of Gallatin County, Montana. Said Common Open Space Lot contains 0.09 acres or 4,001.27 square feet. The GRANTOR warrants that it is lawfully seized and possessed of the real property described above, that it has lawful right to convey the property, or any part of it, and that it will forever defend the title of the property against the claims of all persons. The GRANTOR further agrees that the GRANTEE may peaceably hold and enjoy the rights and privileges herein granted without any interruption by the GRANTOR. 67 The terms, covenants and provisions of the easement and agreement shall extend to and be binding upon the heirs, executors, administrators, personal representatives, successors and assigns of the parties hereto. Dated this ______ day of ___________, 20 . By: ___________________________ GRANTOR CORPORATE: STATE OF MONTANA ) ):ss County of Gallatin ) On this day of , 20 , before me the undersigned, a Notary Public for the State of Montana, personally appeared , known to me to be of and the person whose name is subscribed to the within instrument and acknowledged to me that he executed the within instrument for and on behalf of . IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana (Printed Name) Residing at My Commission expires / /20 68 ACCEPTED: __________________________ CITY OF BOZEMAN by ______________________ City Manager ATTEST: _______________________________ City Clerk STATE OF MONTANA ) ) ss. County of Gallatin ) On this ______ day of ___________________, 20 , before me, a Notary Public for the State of Montana, personally appeared JEFF MIHELICH and MIKE MAAS, known to me to be the City Manager and City Clerk for the City of Bozeman and the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) ______________________________________ Notary Public for the State of Montana (Printed Name) Residing at Bozeman, Montana My Commission Expires: / /20 69 After Recording, return to: City of Bozeman P.O. Box 1230 Bozeman, MT 59771 DRAINAGE EASEMENT RTR Holdings II, LLC, by Three River Capital, LLC, its manager , GRANTOR(S), in consideration of One Dollar ($1.00) and other good and valuable consideration, receipt of which is acknowledged, grants to the City of Bozeman, a municipal corporation of the State of Montana, with offices at 121 North Rouse Avenue, Bozeman Montana 59715, GRANTEE, its successors and assigns, an easement for public drainage purposes, in, through and across the following described real property situated in Gallatin County, Montana, more particularly described as follows: Common Open Space Lot 2, of Block 1 of the South University District Phase 3 Major Subdivision (Document No. ), records of Gallatin County, Montana. Said Common Open Space Lot contains 0.07 acres or 2,850 square feet. The GRANTOR warrants that it is lawfully seized and possessed of the real property described above, that it has lawful right to convey the property, or any part of it, and that it will forever defend the title of the property against the claims of all persons. The GRANTOR further agrees that the GRANTEE may peaceably hold and enjoy the rights and privileges herein granted without any interruption by the GRANTOR. The terms, covenants and provisions of the easement and agreement shall extend to and be binding upon the heirs, executors, administrators, personal representatives, successors and 70 assigns of the parties hereto. Dated this ______ day of ___________, 20 . By: ___________________________ GRANTOR CORPORATE: STATE OF MONTANA ) ):ss County of Gallatin ) On this day of , 20 , before me the undersigned, a Notary Public for the State of Montana, personally appeared , known to me to be of and the person whose name is subscribed to the within instrument and acknowledged to me that he executed the within instrument for and on behalf of . IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana (Printed Name) Residing at My Commission expires / /20 71 ACCEPTED: __________________________ CITY OF BOZEMAN by ______________________ City Manager ATTEST: _______________________________ City Clerk STATE OF MONTANA ) ) ss. County of Gallatin ) On this ______ day of ___________________, 20 , before me, a Notary Public for the State of Montana, personally appeared JEFF MIHELICH and MIKE MAAS, known to me to be the City Manager and City Clerk for the City of Bozeman and the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) ______________________________________ Notary Public for the State of Montana (Printed Name) Residing at Bozeman, Montana My Commission Expires: / /20 72 After Recording, return to: City of Bozeman P.O. Box 1230 Bozeman, MT 59771 DRAINAGE EASEMENT RTR Holdings II, LLC, by Three Rivers Capital, LLC, its manager , GRANTOR(S), in consideration of One Dollar ($1.00) and other good and valuable consideration, receipt of which is acknowledged, grants to the City of Bozeman, a municipal corporation of the State of Montana, with offices at 121 North Rouse Avenue, Bozeman Montana 59715, GRANTEE, its successors and assigns, an easement for public drainage purposes, in, through and across the following described real property situated in Gallatin County, Montana, more particularly described as follows: Common Open Space Lot 1, of Block 2 of the South University District Phase 3 Major Subdivision (Document No. ), records of Gallatin County, Montana. Said Common Open Space Lot contains 0.07 acres or 2,850 square feet. The GRANTOR warrants that it is lawfully seized and possessed of the real property described above, that it has lawful right to convey the property, or any part of it, and that it will forever defend the title of the property against the claims of all persons. The GRANTOR further agrees that the GRANTEE may peaceably hold and enjoy the rights and privileges herein granted without any interruption by the GRANTOR. The terms, covenants and provisions of the easement and agreement shall extend to and be binding upon the heirs, executors, administrators, personal representatives, successors and assigns of the parties hereto. 73 Dated this ______ day of ___________, 20 . By: ___________________________ GRANTOR CORPORATE: STATE OF MONTANA ) ):ss County of Gallatin ) On this day of , 20 , before me the undersigned, a Notary Public for the State of Montana, personally appeared , known to me to be of and the person whose name is subscribed to the within instrument and acknowledged to me that he executed the within instrument for and on behalf of . IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana (Printed Name) Residing at My Commission expires / /20 74 ACCEPTED: __________________________ CITY OF BOZEMAN by ______________________ City Manager ATTEST: _______________________________ City Clerk STATE OF MONTANA ) ) ss. County of Gallatin ) On this ______ day of ___________________, 20 , before me, a Notary Public for the State of Montana, personally appeared JEFF MIHELICH and MIKE MAAS, known to me to be the City Manager and City Clerk for the City of Bozeman and the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) ______________________________________ Notary Public for the State of Montana (Printed Name) Residing at Bozeman, Montana My Commission Expires: / /20 75 After Recording, return to: City of Bozeman P.O. Box 1230 Bozeman, MT 59771 DRAINAGE EASEMENT RTR Holdings II, LLC, by Three River Capital, LLC, its manager , GRANTOR(S), in consideration of One Dollar ($1.00) and other good and valuable consideration, receipt of which is acknowledged, grants to the City of Bozeman, a municipal corporation of the State of Montana, with offices at 121 North Rouse Avenue, Bozeman Montana 59715, GRANTEE, its successors and assigns, an easement for public drainage purposes, in, through and across the following described real property situated in Gallatin County, Montana, more particularly described as follows: Common Open Space Lot 2, of Block 2 of the South University District Phase 3 Major Subdivision (Document No. ), records of Gallatin County, Montana. Said Common Open Space Lot contains 0.09 acres or 4,002.27 square feet. The GRANTOR warrants that it is lawfully seized and possessed of the real property described above, that it has lawful right to convey the property, or any part of it, and that it will forever defend the title of the property against the claims of all persons. The GRANTOR further agrees that the GRANTEE may peaceably hold and enjoy the rights and privileges herein granted without any interruption by the GRANTOR. The terms, covenants and provisions of the easement and agreement shall extend to and be binding upon the heirs, executors, administrators, personal representatives, successors and assigns of the parties hereto. 76 Dated this ______ day of ___________, 20 . By: ___________________________ GRANTOR CORPORATE: STATE OF MONTANA ) ):ss County of Gallatin ) On this day of , 20 , before me the undersigned, a Notary Public for the State of Montana, personally appeared , known to me to be of and the person whose name is subscribed to the within instrument and acknowledged to me that he executed the within instrument for and on behalf of . IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana (Printed Name) Residing at My Commission expires / /20 77 ACCEPTED: __________________________ CITY OF BOZEMAN by ______________________ City Manager ATTEST: _______________________________ City Clerk STATE OF MONTANA ) ) ss. County of Gallatin ) On this ______ day of ___________________, 20 , before me, a Notary Public for the State of Montana, personally appeared JEFF MIHELICH and MIKE MAAS, known to me to be the City Manager and City Clerk for the City of Bozeman and the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) ______________________________________ Notary Public for the State of Montana (Printed Name) Residing at Bozeman, Montana My Commission Expires: / /20 78 After Recording, return to: City of Bozeman City Clerk’s Office PO Box 1230 Bozeman, MT 59771 PUBLIC ACCESS EASEMENT __ RTR Holdings II, LLC, by Three River Capital, LLC, its manager, GRANTOR(S), in consideration of $ 1.00 and for other and valuable considerations, receipt of which is hereby acknowledged, grants to The City of Bozeman, a Municipal Corporation of the State of Montana, with offices at 121 North Rouse Avenue, Bozeman, Montana 59715, GRANTEE, a public access easement for a multi-use path for the use of the public in, though, and across the following described property situated in Gallatin County, Montana: ▪ Block 1, Lot 1 ▪ Block 2, Lot 1 ▪ Block 3, Lot 1 All of the South University District Phase 3 Major Subdivision (Document No.______________), records of Gallatin County, Montana. The easement is more particularly described on the plat of South University District Phase 3 Major Subdivision (Document No.______________), records of Gallatin County, Montana. On detail 4 of said plat entitled “Public Access Easement Depiction”, which by this reference is made a part hereof. The GRANTOR(S) agrees: (1) To construct and maintain the multi-use path at their own expense in accordance with relevant City Ordinances, including, but not limited to, snow removal and all major and minor repair work. (2) To allow the City to make any and all inspections of the multi-use path and land appurtenant thereto as the City reasonably deems necessary. The GRANTOR(S) warrant that they are lawfully seized and possessed of the real property described above, that they have a lawful right to convey the property, or any part of 79 it, and that they will forever defend the title to this property against the claims of all persons. The GRANTOR(S) further agrees that the GRANTEE may peaceably hold and enjoy the rights and privileges herein granted without any interruption by the GRANTORS. The terms, covenants and provisions of this easement shall extend to and be binding upon the heirs, executors, administrators, personal representatives, successors and assigns of the parties hereto. DATED this day of , 20 . By: Grantor CORPORATE: STATE OF MONTANA ) ):ss County of Gallatin ) On this day of , 20 , before me the undersigned, a Notary Public for the State of Montana, personally appeared , known to me to be of and the person whose name is subscribed to the within instrument and acknowledged to me that he executed the within instrument for and on behalf of . IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana (Printed Name) Residing at My Commission expires / /20 80 ACCEPTED: __________________________ CITY OF BOZEMAN by __________________________ City Manager ATTEST: City Clerk STATE OF MONTANA ) )ss. County of Gallatin ) On this ________ day of ___________________, 2 , before me, a Notary Public for the State of Montana, personally appeared JEFF MIHELICH and MIKE MAAS, known to me to be the City Manager and City Clerk, respectively, of the City of Bozeman and the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana (Printed Name) Residing at My Commission Expires / /20 81 After Recording, return to: City of Bozeman City Clerk’s Office PO Box 1230 Bozeman, MT 59771 UTILITY EASEMENT _ RTR Holdings II, LLC, by Three River Capital, LLC, its manager, GRANTOR, in consideration of $ 1.00 and for other and valuable considerations, receipt of which is acknowledged, grants to The City of Bozeman, a municipal corporation of the State of Montana, with offices at 121 North Rouse Avenue, Bozeman, Montana 59715, GRANTEE, its successors and assigns, a perpetual utility easement for the use of each and every person, firm or corporation, whether public or private, providing or offering to provide telephone, electric power, gas, internet, cable television or other similar utility or service, the right to the joint use of an easement for the construction, maintenance, repair, and removal of their lines and other facilities, in, though, and across a strip of land situated in Gallatin County, Montana, 10 feet wide to be located on the following described real property: • Block 1, Lot 1 • Block 2, Lot 1 • Block 3, Lot 1 • Block 4, Lot 1 • City Park 3 • City Park 4 • All of the South University District Phase 3 Subdivision (Document No. ), records of Gallatin County, Montana. The easement is more particularly described and depicted on the plat of the South University District Phase 3 Subdivision (Document No. ), records of Gallatin County, Montana, which by this reference is made a part hereof. The GRANTOR states that he possesses the real property described above and that he has a lawful right to grant an easement thereon. The GRANTOR further agrees that the GRANTEE may peaceably hold and enjoy the rights and privileges herein granted without any interruption by the GRANTOR. The terms, covenants, and provisions of this easement shall extend to and be binding upon the heirs, executors, administrators, personal representatives, successors, and assigns of the parties hereto. 82 DATED this day of , 20 . By: Grantor CORPORATE: STATE OF MONTANA ) ):ss County of Gallatin ) On this day of , 20 , before me the undersigned, a Notary Public for the State of Montana, personally appeared , known to me to be of and the person whose name is subscribed to the within instrument and acknowledged to me that he executed the within instrument for and on behalf of . IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana (Printed Name) Residing at My Commission expires / /20 (SEAL) Notary Public for the State of Montana (Printed Name) Residing at My Commission Expires / /20 83 ACCEPTED: __________________________ CITY OF BOZEMAN by ________________________ City Manager ATTEST: City Clerk STATE OF MONTANA ) )ss. County of Gallatin ) On this ________ day of ___________________, 20 , before me, a Notary Public for the State of Montana, personally appeared JEFF MIHELICH and MIKE MAAS, known to me to be the City Manager and City Clerk, respectively, of the City of Bozeman and the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana (Printed Name) Residing at My Commission Expires / /20 84 1 After recording return to: South University POA 22 Turtle Rock Court Tiburon, CA 94920 SOUTH UNIVERSITY DISTRICT PHASE 3 MAJOR SUBDIVISION-BLOCK 1 DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS AND RESTRICTIONS RTR Holdings, II, LLC a Montana limited liability company with address of 22 Turtle Rock Court, Tiburon, California 94920 ("Declarant"), is the owner of the real property described as Lot 1, Block 1 of South University District Phase 3 Major Subdivision, located in the NW1/4 of Section 24, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County Montana [Plat reference: J- 605] also referred to herein as Block 1. Block 1, described above, is subject to these covenants and the covenants of the governing South University District Property Owners Association recorded at Doc. No. 2478012, as amended and corrected, and Doc. No. 2478013 in the office of Gallatin Montana County Clerk and Reorder, by the Declarant through the recording of this Declaration of Protective Covenants, Conditions and Restrictions ("Covenants") and any amendment hereto of either Association. PURPOSE The purpose of these Covenants is to protect and maintain property values, establish the Association and require compliance with the terms, conditions and restrictions stated herein and any other covenants and easements which encumber Block 1. Block 1 may be considered a sub-association as the same is recognized in the covenants of the governing South University District recorded at Doc. No. 2478012, as amended and corrected. Block 1 shall comply with the terms set forth herein specifically and the same shall not be applied to other sub-associations. 85 2 STREET FRONTAGE REQUIREMENTS The requirements of this Street frontage requirements section of the covenants are imposed as a condition of City of Bozeman final site plan approval and SHALL ONLY BE AMENDED in accordance with the amended procedure below, in addition to the affirmative vote to amend by the governing body of the City of Bozeman. 1. All street right of ways contiguous to or within the proposed development site not used for street pavement, curbs, gutters, sidewalks or driveways (i.e., street boulevards) shall be landscaped, as defined in the Bozeman Municipal code, and shall include one (1) large canopy tree for each 50 feet of total street frontage rounded to the nearest whole numbers. 2. For street trees, a city of Bozeman planting permit for street trees as well as utility locates shall be obtained prior to beginning any excavation in the City of Bozeman right of way. 3. The street tree planting hole shall be at least twice the diameter of the root ball, the root flare of the newly planted tree must be visible and above ground, and there shall be a mulch ring 3’-4’ in diameter around each newly planted boulevard tree. PHYSICAL MAINTENANCE REQUIREMENTS The requirements of this Physical Maintenance Requirements section of the covenants are imposed as a condition on Block 1 by City of Bozeman final site plan approval and SHALL ONLY BE AMENDED in accordance with the amended procedure below, in addition to the affirmative vote to amend by the governing body of the City of Bozeman. 1. The Association shall maintain the parking areas, private drive aisles, landscaped areas, public plazas and sidewalks. 2. The Association is responsible for ensuring the care, maintenance and replacement of the landscaping as required by the City of Bozeman in the same condition, qualities, species, and varieties in the locations as presented on the landscaping plan. 86 3 3. The South University District Property Owner’s Association shall maintain the storm water infrastructure within Block 1 until development of Block 1, at which time the responsibility shall transferred, after development of the storm water infrastructure, to the owner(s) of Block 1, in accordance with the Storm water Maintenance Plan, appended hereto and incorporated herein as Exhibit A. 4. All outdoor lighting shall be maintained to maximize illumination measured in foot-candles at the property not to exceed 0.3 onto the adjacent residential properties and 1.0 on the adjacent commercial properties and public rights- of-way. 5. The Association shall maintain the snow removal storage areas in a manner and with a method that such storage shall not cause unsafe ingress/egress to the parking areas and shall not be deposited in the public right-of-way. Further, snow storage shall not reduce the required parking spaces and shall not inhibit the parking area access. Additionally, snow storage shall not damage the landscaping. 6. No Owner, occupant, guest, licensee or invitee shall maintain a nuisance upon Block 1. In determining the existence of a nuisance, due consideration shall be given to the character of the development on Block 1 and the South University District as a whole as well as these Covenants, adopted plans and guidelines, design guidelines and other documents of a regulatory nature. ASSOCIATION and MEMBERSHIP An association is hereby established and known as the SUD Phase 3- Block 1 Property Owners Association ("Association"), which is subject to the covenants of the governing South University District overall Property Owners Association, and must elect a representative from its Board of Directors to represent the interests of the Phase 3, Block 1 tenants and businesses. Association may be incorporated under a different name as may be approved by the Montana Secretary of State. The purpose of the Association is to enforce the covenants and meet the operations, obligations and needs for Phase 3 Block 1. The Association shall be operated by a Board of Directors, which shall act by majority vote. The officers, terms, authority and election procedures are set forth in the Bylaws of the Association. Dues, assessments, fees, fines and charges shall be established by the Board of Directors 87 4 and shall be presented to the Association members for approval at the annual meeting. The Association shall have the authority to lien a lot, parcel or unit for non-payment of dues, assessments, fees, fines and charges. All owners of property within Block 1, as well as occupants, guests, licensees and invitees are bound and subject to the terms, conditions and restrictions of Covenants. The owner(s) shall be members of the SUD Phase 3- Block 1 Property Owners Association ("Association"), with voting rights. Members of the Association shall be individual owners of the real property within Block 1 or owners of units within Block 1 created by further subdivision or recording of a condominium regime under the Montana Unit Ownership Act in Block 1. Each lot, parcel or unit is entitled to one vote in the Association. In the event there are multiple owners of a lot or unit, the lot or unit retains one vote within the Association. In no event shall multiple owners of a single lot, parcel or unit be granted additional voting rights by virtue of the lot, parcel or unit being owned by multiple owners. AMENDMENTS Amendments to the portions of these Covenants not required by the City of Bozeman may be adopted by a vote of 2/3rds of the Board of Directors after having presented the same to the Association at a notice meeting. The Association shall be given the right to discuss and comment on any amendment. However, the right to amend the Covenants is exclusively within the authority of the Board of Directors. These covenants and association, which is a sub-association of South University District Protective Covenants Binding on all Property Owners (Covenants, Conditions and Restrictions) as recorded as Doc. No. 2478012, as amended and correct. Upon a vote of one hundred percent (100%) of the owners of Block 1, these covenants and the association may be consolidated into the South University District Protective Covenants Binding on all Property Owners (Covenants, Conditions and Restrictions) as recorded as Doc. No. 2478012, as amended and corrected and the Bylaws thereof. Amendments which are requirements of the City of Bozeman final site plan approval must be approved by a majority of the Board of Directors and a majority of the governing body of the City of Bozeman. All amendments must be recorded in the office of Gallatin County Montana Clerk 88 5 and Recorder. DURATION These Covenants shall run with the land and are binding upon the land, its occupants and shall been forceable by the Association and members. The Covenants are effective as of the date of recording and shall continue for a period of 25 years, after which time these Covenants shall automatically renew and extend for successive ten (10) year periods unless amended by the Board of Directors with the consent of the governing body of the City of Bozeman. Dated this______day of_____________________________________20___. Declarant:________________________________ RTR Holding, LLC BY: Three Rivers Capital, LLC, STATE OF ) :ss. County of _ ) On this ___day of_____________, 20_____, the undersigned, a Notary Public of the State of ________, personally appeared before me being the Member of Three Rivers Capital, LLC, Manager of RTR Holdings, LLC, known to me to be the person that executed the within instrument and acknowledged to me he executed the same on behalf of the LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the day and year first above written. (seal) NOTARY PUBLIC for the State of___________ Printed Name:__________________________ 89 6 EXHIBIT A- Storm Water Maintenance Plan. (a) General Information. The South University District Phase 3 utilizes conventional stormwater collection to mitigate storm water impacts. The storm water facilities consist of curb and gutter, drainage swales, onsite and offsite conveyance piping, below grade retention chambers, and an existing offsite detention basin located in the city park. The system is designed to accommodate all storm water from the Property. A document entitled Storm Water Management Plan and Record Drawings are on file at the City of Bozeman, Engineering Department. The storm water conveyance facilities located on the property are privately owned and maintained. It is the property owner association's responsibility to maintain the storm water facilities located on the property. The storm water facilities are designed to operate without excessive maintenance. However, like all infrastructure, periodic maintenance will prevent costly repair and replacement. The maintenance plan set forth in this Section has been prepared in accordance with City of Bozeman guidelines. Over time, recommended maintenance guidelines may evolve. Please contact the City of Bozeman Storm Water Division if any questions arise. (b) Storm Water Facilities Maintenance Schedule. (i) Site Housekeeping. Site housekeeping is to be conducted continuously as needed. The main cause of storm water facility damage is poor site housekeeping. Sediment tracked onto pavement can be washed into storm water inlets/ conveyance piping and damage these facilities. Trash can clog pipes and inlet structures causing property damage. Site housekeeping consists of the following: • Keep sidewalk and pavement areas clean • Pick up trash • Restore damaged landscaping in order to prevent sediment runoff (ii) System Monitoring. System monitoring is to be conducted quarterly, except in winter. The storm water facilities shall be inspected quarterly to quickly identify small issues before expensive damage can occur. In addition to regular · monitoring, the best time to inspect the 90 7 performance of storm water facilities is during runoff events. System monitoring consists of the following: • Observe system during runoff. Look for ponding outside of stormwater inlets. This can indicate a clogged inlet or pipe. • Inspect inlets, manholes and pipes (iii) Inlet, Manhole, and Piping Quarterly Maintenance. Inlet, manhole, and piping maintenance is to be conducted quarterly. All storm water inlets and manholes have a sump to capture sediment. If this sediment is not periodically removed it can wash downstream and clog infiltration facilities. The sump is typically visible from the surface through the inlet grate. Inlet, manhole, and piping maintenance consists of the following: • Remove visible sediment from sump. • Inspect pipe inlets and outlets for sediment in pipe, and remove if present. (iv) Inlet, Manhole, and Piping Long-term Maintenance. This maintenance is to be conducted long-term if and when necessary. If regular housekeeping and maintenance is not performed adequately, sediment and debris can accumulate in the storm water conveyance piping, and pipes may become clogged. Long-term inlet, manhole, and piping maintenance consist of the following: • Hire a contractor to clean pipes and remove all sediment encountered from manhole sumps, inlet sumps and/or piping. (v) Below-grade Retention Chambers Long-term Maintenance. This maintenance is to be conducted on an annual basis at a minimum. If regular housekeeping and maintenance is not performed adequately, sediment and debris will accumulate in the underground stormwater retention basins, and could negatively affect the stormwater percolation rate. Retention pond maintenance consist of the following: • Remove underground chamber’s inspection ports • Record the depth from the rim of the inspection port to the 91 8 chamber’s floor. If the measurement changes by 0.1’ between any reading, or sediment accumulates to a depth of 0.1’ above the bottom of the chamber, • Hire a contractor to flush and clean out the stormwater storage chambers. 92 9 BYLAWS OF SOUTH UNIVERSITY DISTRICT – PHASE 3 - BLOCK 1 PROPERTY OWNERS ASSOCIATION ARTICLE I NAME South University District - Phase 3 - Block I Property Owners Association ("Association") is the organization which is to be governed by and which is empowered to act in accordance with these Bylaws. The Association may be incorporated and maintain its incorporation status. ARTICLE II ADDRESS The address of the initial principal office of the Association shall be: 950 Trailcrest Drive Bozeman, MT 59718 ARTICLE III POWERS The Association shall have all the powers and authority to operate and meet the needs of Block 1, including enforcement of the South University District - Phase 3- Block 1 Declaration of Protective Covenants, Conditions and Restrictions as well as those of a nonprofit corporation enumerated and set forth in Title 35, Chapter 2, M.C.A. ARTICLE IV MEMBERSHIP INTEREST and OFFICERS The owner(s) shall be members of the SUD Phase 3- Block I Property Owners Association ("Association"), with voting rights. Members of the Association shall be individual owners of the real property within Block 1 or owners of units within Block 1 created by further subdivision or recording of a condominium regime pursuant to the Montana Unit Ownership Act of Block 1. Each lot, parcel or unit is entitled to one vote in the Association. Multiple owners of a single parcel of real property would have collectively one such membership or voting interest. If more than one condominium unit, lot, 93 10 parcel, or tract is owned, the owner or owners thereof would have one membership or voting interest for each separate lot, parcel or unit. In the event there are multiple owners of a lot or unit, the lot or unit retains one vote within the Association. In no event shall multiple owners of a single lot, parcel or unit be granted additional voting rights by virtue of the lot, parcel or unit being owned by multiple owners. Membership interest shall run with the land so that said interest is an incident to ownership beginning when ownership rights are acquired and terminating when such rights are divested. Accordingly, no member shall be expelled, nor shall he be permitted to withdraw or resign while possessing a membership interest. The Board of Directors shall consist of not less than three (3) members and not more than five (5) members. The duties of each of the offices of the Board of Directors shall be as follows: A. President. The President shall preside over all meetings of the Association. He or she shall call the membership together whenever necessary. The President shall be the general administrative and executive officer of the Association, and shall perform such duties as may be specified, and exercise such powers as may be delegated to the office of President by the Board of Directors. The President shall also represent the SUD Phase 3 Block 1 Property Owners Association on the overall, governing SUD Property Owners Association. B. Vice-President. The Vice-President shall exercise the powers of the President in the absence of the President. C. Secretary-Treasurer. The Secretary shall give notice of all meetings of the Association, and shall keep a record of the proceedings of the meetings of the Association. The Secretary shall be authorized to sign on behalf of the Association, all records, documents and instruments when such are authorized to be signed by the Association. 94 11 The Treasurer shall keep and maintain adequate and correct accounts of the accounts, properties, and business of the Association, including accounts of its assets, liabilities, receipts, disbursements, gains and losses of the Association. The Treasurer shall prepare and report such periodic accountings as shall be required by the Association. Section 9. A vacancy in any office of the Association shall be filled by appointment by the Board of Directors until the next annual meeting or the successor is duly appointed or elected. ARTICLE V MEETINGS There shall be an annual meeting of the membership. The meeting shall be held on the 1st Tuesday of February, and the hour and place of such meeting shall be contained in the notice of meetings as hereinafter described. The annual meeting shall be the time for the conduct of any and all legitimate business of the Association, including review of the budget for the next year, election of directors and presentation of reports. Voting at all meetings shall be in the manner prescribed in these Bylaws. Special meetings may be called at any time upon the initiative of the President, or in the absence of the President, by the Vice-President. In addition, a special meeting shall be held upon the call by fifty percent (50%) of the members of the Association. Special meetings shall require seven (7) days notice, in writing. Notice of annual and special meetings shall be mailed to address for each member pursuant to the records of the Association. The presence of members, in person or by written proxy, representing 60% of the total votes of the membership shall constitute a quorum. All meetings both annual and special shall be presided over by the President of the Board of Directors or her/his appointed representative. Any meeting may be adjourned by the Board of Directors at their discretion, but any meeting adjourned before all its business is disposed of shall be reconvened within thirty (30) days of such adjournment upon due notice given. Resolutions as hereinafter described may be introduced by any member at any 95 12 annual meeting provided such resolution in written form is presented to the Secretary of the Board no later than ten (10) days prior to the date of such meeting. Written notice of all meetings, annual and special, shall be mailed to every member of record as of the date of mailing no later than ten (10) days and not more than fifty (50) days before the date of the meeting. It shall be the duty of each member to advise the Association of her/his current address. In the absence of such notice, the member's address shall be the address of record with the Gallatin County Assessor's office. All meetings may provide for telephonic and electronic participation, if the media is reasonably available for use. ARTICLE VI VOTING Each membership interest as defined in Article IV of these Bylaws shall have one (1) vote on all matters to come before the Association meeting. Voting of such interest shall be in the manner provided by the Board of Directors and in these Bylaws. Voting may be in person or by written proxy. ARTICLE VII RESOLUTIONS All matters that are the business and concern of the Association may be presented to the Association and meetings of the Association in the form of resolutions directed to the Board of Directors. Except for resolutions that contravene these bylaws, the Association Articles of Incorporation, if any, Covenants, if such resolutions are passed by over fifty percent (50%) of the said membership interest of record and eligible to vote shall be binding on the Board of Directors. Such binding resolution shall have the effect of compelling the Board of Directors to take positive action in response to the general inclination of the resolution. However, the scope, extent and specific character of all such 96 13 action shall be within the final discretion of the Board of Directors. ARTICLE VIII POWERS AND DUTIES OF BOARD The Board of Directors shall have the following powers and duties: A. To enter into contracts and agreements as are necessary to effect the business of the Association. B. To provide for the construction, installation, acquisition, replacement, operation, maintenance and repair by the Association of buildings, equipment, common open space, facilities and services for recreation, roads and alleys, fire protection and other services and functions of the Association. Contracts for such work with third parties which provide for a term or duration in excess of one year must be approved by a majority of the members, which approval may be ratified at the annual or any special meeting of the Association. C. To make and establish rules and regulations for the governance of facilities and the performing of such functions, the taking of such action and operating in such areas as are within the jurisdictions of the Association. D. To set a fine schedule and make dues, charges and assessments as described in these Bylaws and Covenants on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. E. To take necessary and appropriate action to collect assessments from members, including the filing of liens and prosecuting foreclosures as provided in these Bylaws. F. To call meetings of the Association, both annual and special, and to preside over such meetings and to give appropriate notice of such meetings as required by these Bylaws. G. To formulate and introduce resolutions at the meetings of the Association. H. To hold meetings of the Board of Directors as are necessary to conduct Association affairs. I. To exercise ultimate decisional power in and on all matters affecting the Association. J. To pay the expenses of the Association, including all taxes or assessments and to contract and pay for such insurance as may be necessary in the best interests of the Association, and to provide for the 97 14 use and disposition of the insurance proceeds in the event of loss or damage. K. To fill vacancies on the Board by agreement of the remaining member(s), should the vacancy not, however, be filed by the Board, it may be filled by an election at an annual or special meeting wherein each membership interest shall have one (1) vote. L. To maintain lists of members. M. To keep records in a good and businesslike manner of all assessments made, all expenditures, and the status of each member's payments of assessment; and to make such records accessible at reasonable times to all members. N. To provide municipal type facilities for the safety, comfort, health, well-being and pleasure of the residents and guests of residents. 0. To promote, conserve and preserve the premises. P. To do any and all things necessary to carry into effect these Bylaws and to implement the purposes as may be stated in the Articles of Incorporation and to do any and all things necessary to require compliance with and enforce Covenants which by reference therein are made a part of these Bylaws. Q. To deal with agencies, officers, boards, commissions, departments and bureaus or other governmental bodies in a federal, state, county and local basis to carry out the above powers, duties and responsibilities. R. To establish accounts for operating and/or development funds as set out in the Covenants. ARTICLE IX ASSESSMENTS, DUES, FEES, FINES and CHARGES The Association, acting through the Board of Directors, shall have the power to levy assessments, dues, fees, fines and charges on its members. The assessments levied shall be used exclusively to promote operations, maintenance, recreation, health, safety and welfare of the residents of the property and for the improvement and the maintenance of the common open spaces, storm water retention systems, parking areas, private streets, landscape maintenance, liability insurance, Association employees' wages, mailing costs and other related expenses incurred on behalf of the Association as further described hereafter. The assessments shall be levied consistent with Covenants. 98 15 ARTICLE X BUDGETS On or before June 30th of each year, the Board shall prepare and mail to each member a budget for expenses for the forthcoming calendar year. The Board shall cause a copy of an operating statement to simultaneously be prepared showing income and disbursements for the preceding fiscal year. ARTICLE XI QUORUM Meetings of the Association shall be convened at the time and place contained in the notice of such meeting only if a quorum of the membership interest is present either in person or by proxy. A quorum shall consist of not less than thirty percent (30%) of the total represented membership interest of the Association qualified and eligible to vote at the time. Any membership interest may be represented by the owner thereof or by his agent who has written authority to so act, including written proxy. ARTICLE XII VOTING INTEREST Whenever any lot, parcel or unit is owned or leased by two or more persons or by an entity, such person or persons or entity must, prior to a meeting where voting may be allowed, among and between themselves determine who is entitled to vote the membership interest and in what manner it shall be voted. If, in the judgment of the Board, a bona fide and irreconcilable dispute arises as to the voting or right to vote a membership interest, such interest may be declared to be a dispute and for the time such interest is in dispute, the member(s) holding such shall have no voting rights. ARTICLE XIII SECRETARY The Secretary of the Board of Directors shall maintain a record of all membership interests in the Association. In order to make a determination of membership interest for any purpose stated in these Bylaws or the laws of the State of Montana, the Board may order the record closed for a stated period of time. Notice of assessments and liability for assessments shall be in the name of the registered owner on the membership list at the time assessments are declared by the Board. 99 16 ARTICLE XIV BOARD MEMBERS The Board of Directors shall be established consistent with the South University District Protective Agreements Binding All Property Owners (Covenants, Conditions and Restrictions). Members of the Board of Directors shall be authorized pursuant to the Covenants and these Bylaws. Members of the Board and their officers, assistant officers, agents and employees acting in good faith on behalf of the Association: (1) shall not be liable to the members or their respective owners or members as a result of their activities as such for any mistake of judgment, negligence or otherwise, except for their own willful misconduct or bad faith; (2) shall have no personal liability in contract to a member or any other person or entity under any agreement, instrument or transaction entered into by them on behalf of the Association in their capacity as such; (3) shall have no personal liability in tort to any member or any person or entity, except for their own willful misconduct or bad faith; (4) shall have no personal liability arising out of the use, misuse or condition of the Property which might in any way be assessed against or imputed to them as a result of or by virtue of their capacity as such. ARTICLE XV TERMS AND REPLACEMENT The terms of office for members of the Board shall be three (3) year terms after the initial staggering of terms in which Board member 1 shall serve a one year term; Board members 2 and 3 shall serve a two year term and Board members 4 and 5 shall serve a three year term. The Declarant shall appoint the initial members to the Board of Directors. In the event of a vacancy during a term, the Board shall replace the board member. At the end of each term, the vacancy shall be filled by a vote of the members of the Association. ARTICLE XVI COMMITTEES Pursuant to the Title 35, Chapter 2, M.C.A. and subject to the restrictions stated therein the Board may appoint committees to act for the Board and to exercise the authority of the Board on matters referred to them by the Board. Such 100 17 committees may be dissolved at any time by the Board of Directors. ARTICLE XVII INSURANCE The Board may purchase insurance policies to protect the property of the Association against casualty loss and to protect the Association and the Board members, when acting in their official capacity, from liability. The extent and specific nature of coverage shall be determined by the Board. ARTICLE XVIII COVENANTS No acts by the Association or by the Board of Directors shall be contrary to the Covenants on file with the Clerk and Recorder of Gallatin County, Montana, and amendments thereto. On its own initiative, the Board may take such action as it deems necessary, including the taking of legal action and initiating suit to enforce the Covenants. ARTICLE XX COMPENSATI ON Board members shall be reimbursed for any out-of-pocket expenses incurred while acting in their official capacity, but only to the extent approved by the other Board members. ARTICLE XXI SEVERABILITY A determination of invalidity of any one or more of the provisions or conditions hereof by judgment, order, or decree of a court shall not affect in any manner the other provisions hereof, which shall remain in full force and effect. ARTICLE XXII INTERPRETATION AND AMENDMENT The Board shall have the power to interpret all the provisions of these Bylaws and such interpretation shall be binding on all persons. These Bylaws may be amended from time to time whenever at least thirty percent (30%) of the 101 18 membership interests shall have voted in favor of such amendment. THESE BYLAWS were adopted by the Board of Directors for SOUTH UNIVERSITY DISTRICT- PHASE 3 - BLOCK 1 PROPERTY OWNERS ASSOCIATION on the ________ day of _______________ 20_____ 102 1 After recording return to: South University POA 22 Turtle Rock Court Tiburon, CA 94920 SOUTH UNIVERSITY DISTRICT PHASE 3 MAJOR SUBDIVISION-BLOCK 2 DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS AND RESTRICTIONS RTR Holdings, II, LLC a Montana limited liability company with address of 22 Turtle Rock Court, Tiburon, California 94920 ("Declarant"), is the owner of the real property described as Lot 1, Block 2 of South University District Phase 3 Major Subdivision, located in the NW1/4 of Section 24, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County Montana [Plat reference: J- 605] as referred to herein as Block 2. Block 2, described above, is subject to these covenants and the covenants of the governing South University District Property Owners Association recorded at Doc No. 2478012, as amended and corrected, and Doc. No. 2478013 by the Declarant through the recording of this Declaration of Protective Covenants, Conditions and Restrictions ("Covenants") and any amendment hereto of either Association. PURPOSE The purpose of these Covenants is to protect and maintain property values, establish the Association and require compliance with the terms, conditions and restrictions stated herein and any other covenants and easements which encumber Block 2. Block 2 may be considered a sub-association as the same is recognized in the covenants governing South University District recorded at Doc No. 2478012, as amended and corrected. Block 2 shall comply with the terms set forth herein specifically and the same shall not apply to other sub-associations. 103 2 STREET FRONTAGE REQUIREMENTS The requirements of this Street frontage requirements section of the covenants are imposed as a condition of City of Bozeman final site plan approval and SHALL ONLY BE AMENDED in accordance with the amended procedure below, in addition to the affirmative vote to amend by the governing body of the City of Bozeman. 1. All street right of ways contiguous to or within the proposed development site not used for street pavement, curbs, gutters, sidewalks or driveways (i.e., street boulevards) shall be landscaped, as defined in the Bozeman Municipal code, and shall include one (1) large canopy tree for each 50 feet of total street frontage rounded to the nearest whole numbers. 2. For street trees, a city of Bozeman planting permit for street trees as well as utility locates shall be obtained prior to beginning any excavation in the City of Bozeman right of way. 3. The street tree planting hole shall be at least twice the diameter of the root ball, the root flare of the newly planted tree must be visible and above ground, and there shall be a mulch ring 3’-4’ in diameter around each newly planted boulevard tree. PHYSICAL MAINTENANCE REQUIREMENTS The requirements of this Physical Maintenance Requirements section of the covenants are imposed as a condition of Block 2 of City of Bozeman final site plan approval and SHALL ONLY BE AMENDED in accordance with the amended procedure below, in addition to the affirmative vote to amend by the governing body of the City of Bozeman. 1. The Association shall maintain the parking areas, private drive aisles, landscaped areas, public plazas and sidewalks. 2. The Association is responsible for ensuring the care, maintenance and replacement of the landscaping as required by the City of Bozeman in the same condition, qualities, species, and varieties in the locations as presented on the landscaping plan. 104 3 3. The South University District Property Owner’s Association shall maintain the storm water infrastructure within Block 2 (specifically stormwater retention chambers in Block 2 Common Opens Space Lots 1 and 2) until development of Block 2, at which time the responsibility shall transfer to the Block 2 developer, in accordance with the Storm water Maintenance Plan, appended hereto and incorporated herein as Exhibit A. 4. All outdoor lighting shall be maintained to maximize illumination measured in foot- · candles at the property not to exceed 0.3 onto the adjacent residential properties and 1.0 on the adjacent commercial properties and public rights-of-way. 5. The Association shall maintain the snow removal storage areas in a manner and with a method that such storage shall not cause unsafe ingress/egress to the parking areas and shall not be deposited in the public right-of-way. Further, snow storage shall not reduce the required parking spaces and shall not inhibit the parking area access. Additionally, snow storage shall not damage the landscaping. 6. No Owner, occupant, guest, licensee or invitee shall maintain a nuisance upon Block 2. In determining the existence of a nuisance, due consideration shall be given to the character of the development on Block 2 and the South University District as a whole as well as these Covenants, adopted plans and guidelines, design guidelines and other documents of a regulatory nature. ASSOCIATION and MEMBERSHIP An association is hereby established and known as the SUD Phase 3- Block 2 Property Owners Association ("Association"), which is subject to the covenants of the governing South University District overall Property Owners Association, and must elect a representative from its Board of Directors to represent the interests of the Phase 3, Block 2 tenants and businesses. Association may be incorporated under a different name as may be approved by the Montana Secretary of State. The purpose of the Association is to enforce the covenants and meet the operations, obligations and needs for Phase 3 Block 2. The Association shall be operated by a Board of Directors, which shall act by majority vote. The officers, terms, authority and election procedures are set forth in the Bylaws of the Association. Dues, assessments, fees, fines and charges shall be established by the Board of Directors and shall be presented to the Association members for approval at the annual meeting. 105 4 The Association shall have the authority to lien a lot, parcel or unit for non-payment of dues, assessments, fees, fines and charges. All owners of property within Block 2, as well as occupants, guests, licensees and invitees are bound and subject to the terms, conditions and restrictions of Covenants. The owner(s) shall be members of the SUD Phase 3- Block 2 Property Owners Association ("Association"), with voting rights. Members of the Association shall be individual owners of the real property within Block 2 or owners of units within Block 2 created by further subdivision or submitted to a condominium regime in compliance with the Montana Unit Ownership Act of Block 2. Each lot, parcel or unit is entitled to one vote in the Association. In the event there are multiple owners of a lot or unit, the lot or unit retains one vote within the Association. In no event shall multiple owners of a single lot, parcel or unit be granted additional voting rights by virtue of the lot, parcel or unit being owned by multiple owners. AMENDMENTS Amendments to the portions of these Covenants not required by the City of Bozeman may be adopted by a vote of 2/3rds of the Board of Directors after having presented the same to the Association at a notice meeting. The Association shall be given the right to discuss and comment on any amendment. However, the right to amend the Covenants is exclusively within the authority of the Board of Directors. These covenants and association, which is a sub-association of South University District Protective Covenants Binding on all Property Owners (Covenants, Conditions and Restrictions) as recorded as Doc. No. 2478012, as amended and correct. Upon a vote of one hundred percent (100%) of the owners of Block 2, these covenants and the association may be consolidated into the South University District Protective Covenants Binding on all Property Owners (Covenants, Conditions and Restrictions) as recorded as Doc. No. 2478012, as amended and corrected and the Bylaws thereof. Amendments which are requirements of the City of Bozeman final site plan approval must be approved by a majority of the Board of Directors and a majority of the governing body of the City of Bozeman. All amendments must be recorded in the office of Gallatin County Montana Clerk and Recorder. 106 5 DURATION These Covenants shall run with the land and are binding upon the land, its occupants and shall be enforceable by the Association and members. The Covenants are effective as of the date of recording and shall continue for a period of 25 years, after which time these Covenants shall automatically renew and extend for successive ten (10) year periods unless amended by the Board of Directors with the consent of the governing body of the City of Bozeman. Dated this______day of_____________________________________20___. Declarant:________________________ RTR Holding, LLC BY: Three Rivers Capital, LLC, STATE OF ) :ss. County of _ ) On this ___day of _______________, 20_____, the undersigned, a Notary Public of the State of ________ personally appeared before me being the Member of Three Rivers Capital, LLC, Manager of RTR Holdings, LLC, known to me to be the person that executed the within instrument and acknowledged to me he executed the same on behalf of the LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the day and year first above written. (seal) NOTARY PUBLIC for the State of___________ Printed Name:__________________________ 107 6 EXHIBIT A- Storm Water Maintenance Plan. (a) General Information. The South University District Phase 3 Major Subdivision utilizes conventional stormwater collection to mitigate storm water impacts. The storm water facilities consist of curb and gutter, drainage swales, onsite and offsite conveyance piping, below grade retention chambers, and an existing offsite detention basin located in the city park. The system is designed to accommodate all storm water from the Property. A document entitled Storm Water Management Plan and Record Drawings are on file at the City of Bozeman, Engineering Department. The storm water conveyance facilities located on the property are privately owned and maintained. It is the property owner association's responsibility to maintain the storm water facilities located on the property. The storm water facilities are designed to operate without excessive maintenance. However, like all infrastructure, periodic maintenance will prevent costly repair and replacement. The maintenance plan set forth in this Section has been prepared in accordance with City of Bozeman guidelines. Over time, recommended maintenance guidelines may evolve. Please contact the City of Bozeman Storm Water Division if any questions arise. (b) Storm Water Facilities Maintenance Schedule. (i) Site Housekeeping. Site housekeeping is to be conducted continuously as needed. The main cause of storm water facility damage is poor site housekeeping. Sediment tracked onto pavement can be washed into storm water inlets/ conveyance piping and damage these facilities. Trash can clog pipes and inlet structures causing property damage. Site housekeeping consists of the following: • Keep sidewalk and pavement areas clean • Pick up trash • Restore damaged landscaping in order to prevent sediment runoff (ii) System Monitoring. System monitoring is to be conducted quarterly, except in winter. The storm water facilities shall be inspected quarterly to quickly identify small issues before expensive damage can occur. In addition to regular · monitoring, the best time to inspect the 108 7 performance of storm water facilities is during runoff events. System monitoring consists of the following: • Observe system during runoff. Look for ponding outside of stormwater inlets. This can indicate a clogged inlet or pipe. • Inspect inlets, manholes and pipes (iii) Inlet, Manhole, and Piping Quarterly Maintenance. Inlet, manhole, and piping maintenance is to be conducted quarterly. All storm water inlets and manholes have a sump to capture sediment. If this sediment is not periodically removed it can wash downstream and clog infiltration facilities. The sump is typically visible from the surface through the inlet grate. Inlet, manhole, and piping maintenance consists of the following: • Remove visible sediment from sump. • Inspect pipe inlets and outlets for sediment in pipe, and remove if present. (iv) Inlet, Manhole, and Piping Long-term Maintenance. This maintenance is to be conducted long-term if and when necessary. If regular housekeeping and maintenance is not performed adequately, sediment and debris can accumulate in the storm water conveyance piping, and pipes may become clogged. Long-term inlet, manhole, and piping maintenance consist of the following: • Hire a contractor to clean pipes and remove all sediment encountered from manhole sumps, inlet sumps and/or piping. (v) Below-grade Retention Chambers Long-term Maintenance. This maintenance is to be conducted on an annual basis at a minimum. If regular housekeeping and maintenance is not performed adequately, sediment and debris will accumulate in the underground stormwater retention basins, and could negatively affect the stormwater percolation rate. Retention pond maintenance consist of the following: • Remove underground chamber’s inspection ports • Record the depth from the rim of the inspection port to the chamber’s floor. If the measurement changes by 0.1’ between 109 8 any reading, or sediment accumulates to a depth of 0.1’ above the bottom of the chamber, • Hire a contractor to flush and clean out the stormwater storage chambers. 110 9 BYLAWS OF SOUTH UNIVERSITY DISTRICT – PHASE 3 - BLOCK 2 PROPERTY OWNERS ASSOCIATION ARTICLE I NAME South University District - Phase 3 - Block 2 Property Owners Association ("Association") is the organization which is to be governed by and which is empowered to act in accordance with these Bylaws. The Association may be incorporated and maintain its incorporation status. ARTICLE II ADDRESS The address of the initial principal office of the Association shall be: 950 Trailcrest Drive Bozeman, MT 59718 ARTICLE III POWERS The Association shall have all the powers and authority to operate and meet the needs of Block 2, including enforcement of the South University District - Phase 3- Block 2 Declaration of Protective Covenants, Conditions and Restrictions as well as those of a nonprofit corporation enumerated and set forth in Title 35, Chapter 2, M.C.A. ARTICLE IV MEMBERSHIP INTEREST and OFFICERS The owner(s) shall be members of the SUD Phase 3- Block 2 Property Owners Association ("Association"), with voting rights. Members of the Association shall be individual owners of the real property within Block 2 or owners of units within Block 2 created by further subdivision or condominiumization of Block 2. Each lot, parcel or unit is entitled to one vote in the Association. Multiple owners of a single parcel of real property would have collectively one such membership or voting interest. If more than one condominium unit, lot, parcel, or tract is owned, the owner or owners thereof would have one membership or voting interest for each separate lot, parcel or unit. In the event 111 10 there are multiple owners of a lot or unit, the lot or unit retains one vote within the Association. In no event shall multiple owners of a single lot, parcel or unit be granted additional voting rights by virtue of the lot, parcel or unit being owned by multiple owners. Membership interest shall run with the land so that said interest is an incident to ownership beginning when ownership rights are acquired and terminating when such rights are divested. Accordingly, no member shall be expelled, nor shall he be permitted to withdraw or resign while possessing a membership interest. The Board of Directors shall consist of not less than three (3) members and not more than five (5) members. The duties of each of the offices of the Board of Directors shall be as follows: A. President. The President shall preside over all meetings of the Association. He or she shall call the membership together whenever necessary. The President shall be the general administrative and executive officer of the Association, and shall perform such duties as may be specified, and exercise such powers as may be delegated to the office of President by the Board of Directors. The President shall also represent the SUD Phase 3 Block 2 Property Owners Association on the overall, governing SUD Property Owners Association. B. Vice-President. The Vice-President shall exercise the powers of the President in the absence of the President. C. Secretary-Treasurer. The Secretary shall give notice of all meetings of the Association, and shall keep a record of the proceedings of the meetings of the Association. The Secretary shall be authorized to sign on behalf of the Association, all records, documents and instruments when such are authorized to be signed by the Association. The Treasurer shall keep and maintain adequate and correct accounts of the accounts, properties, and business of the Association, including accounts of its assets, liabilities, receipts, disbursements, gains and losses of the Association. 112 11 The Treasurer shall prepare and report such periodic accountings as shall be required by the Association. Section 9. A vacancy in any office of the Association shall be filled by appointment by the Board of Directors until the next annual meeting or the successor is duly appointed or elected. ARTICLE V MEETINGS There shall be an annual meeting of the membership. The meeting shall be held on the 1st Tuesday of February, and the hour and place of such meeting shall be contained in the notice of meetings as hereinafter described. The annual meeting shall be the time for the conduct of any and all legitimate business of the Association, including review of the budget for the next year, election of directors and presentation of reports. Voting at all meetings shall be in the manner prescribed in these Bylaws. Special meetings may be called at any time upon the initiative of the President, or in the absence of the President, by the Vice-President. In addition, a special meeting shall be held upon the call by fifty percent (50%) of the members of the Association. Special meetings shall require seven (7) days notice, in writing. Notice of annual and special meetings shall be mailed to address for each member pursuant to the records of the Association. The presence of members, in person or by written proxy, representing 60% of the total votes of the membership shall constitute a quorum. All meetings both annual and special shall be presided over by the President of the Board of Directors or her/his appointed representative. Any meeting may be adjourned by the Board of Directors at their discretion, but any meeting adjourned before all its business is disposed of shall be reconvened within thirty (30) days of such adjournment upon due notice given. Resolutions as hereinafter described may be introduced by any member at any annual meeting provided such resolution in written form is presented to the Secretary of the Board no later than ten (10) days prior to the date of such meeting. 113 12 Written notice of all meetings, annual and special, shall be mailed to every member of record as of the date of mailing no later than ten (10) days and not more than fifty (50) days before the date of the meeting. It shall be the duty of each member to advise the Association of her/his current address. In the absence of such notice, the member's address shall be the address of record with the Gallatin County Assessor's office. All meetings may provide for telephonic and electronic participation, if the media is reasonably available for use. ARTICLE VI VOTING Each membership interest as defined in Article IV of these Bylaws shall have one (1) vote on all matters to come before the Association meeting. Voting of such interest shall be in the manner provided by the Board of Directors and in these Bylaws. Voting may be in person or by written proxy. ARTICLE VII RESOLUTIONS All matters that are the business and concern of the Association may be presented to the Association and meetings of the Association in the form of resolutions directed to the Board of Directors. Except for resolutions that contravene these bylaws, the Association Articles of Incorporation, if any, Covenants, if such resolutions are passed by over fifty percent (50%) of the said membership interest of record and eligible to vote shall be binding on the Board of Directors. Such binding resolution shall have the effect of compelling the Board of Directors to take positive action in response to the general inclination of the resolution. However, the scope, extent and specific character of all such action shall be within the final discretion of the Board of Directors. ARTICLE VIII POWERS AND DUTIES OF BOARD The Board of Directors shall have the following powers and duties: A. To enter into contracts and agreements as are necessary to affect the business of the Association. B. To provide for the construction, installation, acquisition, replacement, operation, maintenance and repair by the Association of buildings, equipment, common open space, facilities and services for recreation, 114 13 roads and alleys, fire protection and other services and functions of the Association. Contracts for such work with third parties which provide for a term or duration in excess of one year must be approved by a majority of the members, which approval may be ratified at the annual or any special meeting of the Association. C. To make and establish rules and regulations for the governance of facilities and the performing of such functions, the taking of such action and operating in such areas as are within the jurisdictions of the Association. D. To set a fine schedule and make dues, charges and assessments as described in these Bylaws and Covenants on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. E. To take necessary and appropriate action to collect assessments from members, including the filing of liens and prosecuting foreclosures as provided in these Bylaws. F. To call meetings of the Association, both annual and special, and to preside over such meetings and to give appropriate notice of such meetings as required by these Bylaws. G. To formulate and introduce resolutions at the meetings of the Association. H. To hold meetings of the Board of Directors as are necessary to conduct Association affairs. I. To exercise ultimate decisional power in and on all matters affecting the Association. J. To pay the expenses of the Association, including all taxes or assessments and to contract and pay for such insurance as may be necessary in the best interests of the Association, and to provide for the use and disposition of the insurance proceeds in the event of loss or damage. K. To fill vacancies on the Board by agreement of the remaining member(s), should the vacancy not, however, be filed by the Board, it may be filled by an election at an annual or special meeting wherein each membership interest shall have one (1) vote. L. To maintain lists of members. M. To keep records in a good and businesslike manner of all assessments made, all expenditures, and the status of each member's payments of assessment; and to make such records accessible at reasonable times to 115 14 all members. N. To provide municipal type facilities for the safety, comfort, health, well-being and pleasure of the residents and guests of residents. 0. To promote, conserve and preserve the premises. P. To do any and all things necessary to carry into effect these Bylaws and to implement the purposes as may be stated in the Articles of Incorporation and to do any and all things necessary to require compliance with and enforce Covenants which by reference therein are made a part of these Bylaws. Q. To deal with agencies, officers, boards, commissions, departments and bureaus or other governmental bodies in a federal, state, county and local basis to carry out the above powers, duties and responsibilities. R. To establish accounts for operating and/or development funds as set out in the Covenants. ARTICLE IX ASSESSMENTS, DUES, FEES, FINES and CHARGES The Association, acting through the Board of Directors, shall have the power to levy assessments, dues, fees, fines and charges on its members. The assessments levied shall be used exclusively to promote operations, maintenance, recreation, health, safety and welfare of the residents of the property and for the improvement and the maintenance of the common open spaces, storm water retention systems, parking areas, private streets, landscape maintenance, liability insurance, Association employees' wages, mailing costs and other related expenses incurred on behalf of the Association as further described hereafter. The assessments shall be levied consistent with Covenants. ARTICLE X BUDGETS On or before June 30th of each year, the Board shall prepare and mail to each member a budget for expenses for the forthcoming calendar year. The Board shall cause a copy of an operating statement to simultaneously be prepared showing income and disbursements for the preceding fiscal year. 116 15 ARTICLE XI QUORUM Meetings of the Association shall be convened at the time and place contained in the notice of such meeting only if a quorum of the membership interest is present either in person or by proxy. A quorum shall consist of not less than thirty percent (30%) of the total represented membership interest of the Association qualified and eligible to vote at the time. Any membership interest may be represented by the owner thereof or by his agent who has written authority to so act, including written proxy. ARTICLE XII VOTING INTEREST Whenever any lot, parcel or unit is owned or leased by two or more persons or by an entity, such person or persons or entity must, prior to a meeting where voting may be allowed, among and between themselves determine who is entitled to vote the membership interest and in what manner it shall be voted. If, in the judgment of the Board, a bona fide and irreconcilable dispute arises as to the voting or right to vote a membership interest, such interest may be declared to be a dispute and for the time such interest is in dispute, the member(s) holding such shall have no voting rights. ARTICLE XIII SECRETARY The Secretary of the Board of Directors shall maintain a record of all membership interests in the Association. In order to make a determination of membership interest for any purpose stated in these Bylaws or the laws of the State of Montana, the Board may order the record closed for a stated period of time. Notice of assessments and liability for assessments shall be in the name of the registered owner on the membership list at the time assessments are declared by the Board. ARTICLE XIV BOARD MEMBERS The Board of Directors shall be established consistent with the South University District Protective Agreements Binding All Property Owners (Covenants, Conditions and Restrictions). 117 16 Members of the Board of Directors shall be authorized pursuant to the Covenants and these Bylaws. Members of the Board and their officers, assistant officers, agents and employees acting in good faith on behalf of the Association: (1) shall not be liable to the members or their respective owners or members as a result of their activities as such for any mistake of judgment, negligence or otherwise, except for their own willful misconduct or bad faith; (2) shall have no personal liability in contract to a member or any other person or entity under any agreement, instrument or transaction entered into by them on behalf of the Association in their capacity as such; (3) shall have no personal liability in tort to any member or any person or entity, except for their own willful misconduct or bad faith; (4) shall have no personal liability arising out of the use, misuse or condition of the Property which might in any way be assessed against or imputed to them as a result of or by virtue of their capacity as such. ARTICLE XV TERMS AND REPLACEMENT The terms of office for members of the Board shall be three (3) year terms after the initial staggering of terms in which Board member 1 shall serve a one year term; Board members 2 and 3 shall serve a two year term and Board members 4 and 5 shall serve a three year term. The Declarant shall appoint the initial members to the Board of Directors. In the event of a vacancy during a term, the Board shall replace the board member. At the end of each term, the vacancy shall be filled by a vote of the members of the Association. ARTICLE XVI COMMITTEES Pursuant to the Title 35, Chapter 2, M.C.A. and subject to the restrictions stated therein the Board may appoint committees to act for the Board and to exercise the authority of the Board on matters referred to them by the Board. Such committees may be dissolved at any time by the Board of Directors. ARTICLE XVII INSURANCE The Board may purchase insurance policies to protect the property of the 118 17 Association against casualty loss and to protect the Association and the Board members, when acting in their official capacity, from liability. The extent and specific nature of coverage shall be determined by the Board. ARTICLE XVIII COVENANTS No acts by the Association or by the Board of Directors shall be contrary to the Covenants on file with the Clerk and Recorder of Gallatin County, Montana, and amendments thereto. On its own initiative, the Board may take such action as it deems necessary, including the taking of legal action and initiating suit to enforce the Covenants. ARTICLE XX COMPENSATION Board members shall be reimbursed for any out-of-pocket expenses incurred while acting in their official capacity, but only to the extent approved by the other Board members. ARTICLE XXI SEVERABILITY A determination of invalidity of any one or more of the provisions or conditions hereof by judgment, order, or decree of a court shall not affect in any manner the other provisions hereof, which shall remain in full force and effect. ARTICLE XXII INTERPRETATION AND AMENDMENT The Board shall have the power to interpret all the provisions of these Bylaws and such interpretation shall be binding on all persons. These Bylaws may be amended from time to time whenever at least thirty percent (30%) of the membership interests shall have voted in favor of such amendment. THESE BYLAWS were adopted by the Board of Directors for SOUTH UNIVERSITY DISTRICT- PHASE 3 - BLOCK 2 PROPERTY OWNERS ASSOCIATION on the ________ day of ________________________ 20_____ 119 1 After recording return to: South University POA 22 Turtle Rock Court Tiburon, CA 94920 SOUTH UNIVERSITY DISTRICT PHASE 3 MAJOR SUBDIVISION-BLOCK 3 DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS AND RESTRICTIONS RTR Holdings, II, LLC a Montana limited liability company with address of 22 Turtle Rock Court, Tiburon, California 94920 ("Declarant"), is the owner of the real property described as Lot 1, Block 3 of South University District Phase 3 Major Subdivision, located in the NW1/4 of Section 24, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County Montana [Plat reference: J- 605]. Block 3, described above, is subject to these covenants and the covenants of the governing South University District Property Owners Association recorded at Doc. No. 2478012, as amended and corrected, and Doc. No. 2478013 in the office of Gallatin Montana County Clerk and Reorder, by the Declarant through the recording of this Declaration of Protective Covenants, Conditions and Restrictions ("Covenants") and any amendment hereto of either Association. PURPOSE The purpose of these Covenants is to protect and maintain property values, establish the Association and require compliance with the terms, conditions and restrictions stated herein and any other covenants and easements which encumber Block 1. Block 3 may be considered a sub-association as the same is recognized in the covenants of the governing South University District recorded at Doc. No. 2478012, as amended and corrected. Block 3 shall comply with the terms set forth herein specifically and the same shall not be applied to other sub-associations. 120 2 STREET FRONTAGE REQUIREMENTS The requirements of this Street frontage requirements section of the covenants are imposed as a condition of City of Bozeman final site plan approval and SHALL ONLY BE AMENDED in accordance with the amended procedure below, in addition to the affirmative vote to amend by the governing body of the City of Bozeman. 1. All street right of ways contiguous to or within the proposed development site not used for street pavement, curbs, gutters, sidewalks or driveways (i.e., street boulevards) shall be landscaped, as defined in the Bozeman Municipal code, and shall include one (1) large canopy tree for each 50 feet of total street frontage rounded to the nearest whole numbers. 2. For street trees, a city of Bozeman planting permit for street trees as well as utility locates shall be obtained prior to beginning any excavation in the City of Bozeman right of way. 3. The street tree planting hole shall be at least twice the diameter of the root ball, the root flare of the newly planted tree must be visible and above ground, and there shall be a mulch ring 3’-4’ in diameter around each newly planted boulevard tree. PHYSICAL MAINTENANCE REQUIREMENTS The requirements of this Physical Maintenance Requirements section of the covenants are imposed as a condition Block 3 of City of Bozeman final site plan approval and SHALL ONLY BE AMENDED in accordance with the amended procedure below, in addition to the affirmative vote to amend by the governing body of the City of Bozeman. 1. The Association shall maintain the parking areas, private drive aisles, landscaped areas, public plazas and sidewalks. 2. The Association is responsible for ensuring the care, maintenance and replacement of the landscaping as required by the City of Bozeman in the same condition, qualities, species, and varieties in the locations as presented on the landscaping plan. 121 3 3. The South University District Property Owner’s Association shall maintain the storm water infrastructure within the ‘City Park 4’, Block 3 (specifically stormwater detention pond and its inlet and outlet piping)until development of Block 3, at which time the responsibility shall transfer to the Block 3 developer, in accordance with the Storm water Maintenance Plan, appended hereto and incorporated herein as Exhibit A. 4. All outdoor lighting shall be maintained to maximize illumination measured in foot- · candles at the property not to exceed 0.3 onto the adjacent residential properties and 1.0 on the adjacent commercial properties and public rights-of-way. 5. The Association shall maintain the snow removal storage areas in a manner and with a method that such storage shall not cause unsafe ingress/egress to the parking areas and shall not be deposited in the public right-of-way. Further, snow storage shall not reduce the required parking spaces and shall not inhibit the parking area access. Additionally, snow storage shall not damage the landscaping. 6. No Owner, occupant, guest, licensee or invitee shall maintain a nuisance upon Block 3. In determining the existence of a nuisance, due consideration shall be given to the character of the development on Block 3 and the South University District as a whole as well as these Covenants, adopted plans and guidelines, design guidelines and other documents of a regulatory nature. ASSOCIATION and MEMBERSHIP An association is hereby established and known as the SUD Phase 3- Block 3 Property Owners Association ("Association"), which is subject to the covenants of the governing South University District overall Property Owners Association, and must elect a representative from its Board of Directors to represent the interests of the Phase 3, Block 3 tenants and businesses. Association may be incorporated under a different name as may be approved by the Montana Secretary of State. The purpose of the Association is to enforce the covenants and meet the operations, obligations and needs for Phase 3 Block 3. The Association shall be operated by a Board of Directors, which shall act by majority vote. The officers, terms, authority and election procedures are set forth in the Bylaws of the Association. Dues, assessments, fees, fines and charges shall be established by the Board of Directors and shall be presented to the Association members for approval at the 122 4 annual meeting. The Association shall have the authority to lien a lot, parcel or unit for non-payment of dues, assessments, fees, fines and charges. All owners of property within Block 3, as well as occupants, guests, licensees and invitees are bound and subject to the terms, conditions and restrictions of Covenants. The owner(s) shall be members of the SUD Phase 3- Block 3 Property Owners Association ("Association"), with voting rights. Members of the Association shall be individual owners of the real property within Block 3 or owners of units within Block 3 created by further subdivision or recording of a condominium regime under the Montana Unit Ownership Act in Block 3. Each lot, parcel or unit is entitled to one vote in the Association. In the event there are multiple owners of a lot or unit, the lot or unit retains one vote within the Association. In no event shall multiple owners of a single lot, parcel or unit be granted additional voting rights by virtue of the lot, parcel or unit being owned by multiple owners. AMENDMENTS Amendments to the portions of these Covenants not required by the City of Bozeman may be adopted by a vote of 2/3rds of the Board of Directors after having presented the same to the Association at a notice meeting. The Association shall be given the right to discuss and comment on any amendment. However, the right to amend the Covenants is exclusively within the authority of the Board of Directors. Amendments which are requirements of the City of Bozeman final site plan approval must be approved by a majority of the Board of Directors and a majority of the governing body of the City of Bozeman. These covenants and association, which is a sub-association of South University District Protective Covenants Binding on all Property Owners (Covenants, Conditions and Restrictions) as recorded as Doc. No. 2478012, as amended and correct. Upon a vote of one hundred percent (100%) of the owners of Block 1, these covenants and the association may be consolidated into the South University District Protective Covenants Binding on all Property Owners (Covenants, Conditions and Restrictions) as recorded as Doc. No. 2478012, as amended and corrected and the Bylaws thereof. All amendments must be recorded in the office of Gallatin County Montana Clerk 123 5 and Recorder. DURATION These Covenants shall run with the land and are binding upon the land, its occupants and shall be enforceable by the Association and members. The Covenants are effective as of the date of recording and shall continue for a period of 25 years, after which time these Covenants shall automatically renew and extend for successive ten (10) year periods unless amended by the Board of Directors with the consent of the governing body of the City of Bozeman. Dated this______day of_____________________________________20___. Declarant:_________________________ RTR Holding, LLC BY: Three Rivers Capital, LLC, STATE OF ) :ss. County of _ ) On this ___day of_____________20_____, the undersigned, a Notary Public of the State of ____ , personally appeared before me being the Member of Three Rivers Capital, LLC, Manager of RTR Holdings, LLC, known to me to be the person that executed the within instrument and acknowledged to me he executed the same on behalf of the LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the day and year first above written. (seal) NOTARY PUBLIC for the State of___________ Printed Name:__________________________ 124 6 EXHIBIT A- Storm Water Maintenance Plan. (a) General Information. The South University District Phase 3 Major Subdivision utilizes conventional stormwater collection to mitigate storm water impacts. The storm water facilities consist of curb and gutter, drainage swales, onsite and offsite conveyance piping, below grade retention chambers, and an existing offsite detention basin located in the city park. The system is designed to accommodate all storm water from the Property. A document entitled Storm Water Management Plan and Record Drawings are on file at the City of Bozeman, Engineering Department. The storm water conveyance facilities located on the property are privately owned and maintained. It is the property owner association's responsibility to maintain the storm water facilities located on the property. The storm water facilities are designed to operate without excessive maintenance. However, like all infrastructure, periodic maintenance will prevent costly repair and replacement. The maintenance plan set forth in this Section has been prepared in accordance with City of Bozeman guidelines. Over time, recommended maintenance guidelines may evolve. Please contact the City of Bozeman Storm Water Division if any questions arise. (b) Storm Water Facilities Maintenance Schedule. (i) Site Housekeeping. Site housekeeping is to be conducted continuously as needed. The main cause of storm water facility damage is poor site housekeeping. Sediment tracked onto pavement can be washed into storm water inlets/ conveyance piping and damage these facilities. Trash can clog pipes and inlet structures causing property damage. Site housekeeping consists of the following: • Keep sidewalk and pavement areas clean • Pick up trash • Restore damaged landscaping in order to prevent sediment runoff (ii) System Monitoring. System monitoring is to be conducted quarterly, except in winter. The storm water facilities shall be inspected quarterly to quickly identify small issues before expensive damage can occur. In addition to regular · monitoring, the best time to inspect the 125 7 performance of storm water facilities is during runoff events. System monitoring consists of the following: • Observe system during runoff. Look for ponding outside of stormwater inlets. This can indicate a clogged inlet or pipe. • Inspect inlets, manholes and pipes (iii) Inlet, Manhole, and Piping Quarterly Maintenance. Inlet, manhole, and piping maintenance is to be conducted quarterly. All storm water inlets and manholes have a sump to capture sediment. If this sediment is not periodically removed it can wash downstream and clog infiltration facilities. The sump is typically visible from the surface through the inlet grate. Inlet, manhole, and piping maintenance consists of the following: • Remove visible sediment from sump. • Inspect pipe inlets and outlets for sediment in pipe, and remove if present. (iv) Inlet, Manhole, and Piping Long-term Maintenance. This maintenance is to be conducted long-term if and when necessary. If regular housekeeping and maintenance is not performed adequately, sediment and debris can accumulate in the storm water conveyance piping, and pipes may become clogged. Long-term inlet, manhole, and piping maintenance consist of the following: • Hire a contractor to clean pipes and remove all sediment encountered from manhole sumps, inlet sumps and/or piping. (v) Below-grade Retention Chambers Long-term Maintenance. This maintenance is to be conducted on an annual basis at a minimum. If regular housekeeping and maintenance is not performed adequately, sediment and debris will accumulate in the underground stormwater retention basins, and could negatively affect the stormwater percolation rate. Retention pond maintenance consists of the following: • Remove underground chamber’s inspection ports • Record the depth from the rim of the inspection port to the chamber’s floor. If the measurement changes by 0.1’ between 126 8 any reading, or sediment accumulates to a depth of 0.1’ above the bottom of the chamber, • Hire a contractor to flush and clean out the stormwater storage chambers. (vi) Detention Ponds: Long-term Maintenance. This maintenance is to be conducted on an annual basis at a minimum. If regular housekeeping and maintenance is not performed adequately, sediment and debris will accumulate stormwater detention ponds, and could negatively affect the stormwater capacity. Detention pond maintenance consists of the following: • Inspect for sediment accumulation annually • Inspect for noxious weeds or undesirable vegetation semi0annuall during the growing season (March-October) • Inspect water levels after storm events • Inspect for oil sheens and/or trash on a monthly basis • Inspect inlet and outlet piping on a quarterly basis or after any storm events • Inspect interiors of catch basins and manholes annually for debris and sediment. 127 9 BYLAWS OF SOUTH UNIVERSITY DISTRICT – PHASE 3 - BLOCK 3 PROPERTY OWNERS ASSOCIATION ARTICLE I NAME South University District - Phase 3 - Block 3 Property Owners Association ("Association") is the organization which is to be governed by and which is empowered to act in accordance with these Bylaws. The Association may be incorporated and maintain its incorporation status. ARTICLE II ADDRESS The address of the initial principal office of the Association shall be: 950 Trailcrest Drive Bozeman, MT 59718 ARTICLE III POWERS The Association shall have all the powers and authority to operate and meet the needs of Block 3, including enforcement of the South University District - Phase 3- Block 3 Declaration of Protective Covenants, Conditions and Restrictions as well as those of a nonprofit corporation enumerated and set forth in Title 35, Chapter 2, M.C.A. ARTICLE IV MEMBERSHIP INTEREST and OFFICERS The owner(s) shall be members of the SUD Phase 3- Block 3 Property Owners Association ("Association"), with voting rights. Members of the Association shall be individual owners of the real property within Block 3 or owners of units within Block 3 created by further subdivision or submitted condominium regime of Block 3. Each lot, parcel or unit is entitled to one vote in the Association. Multiple owners of a single parcel of real property would have collectively one such membership or voting interest. If more than one condominium unit, lot, parcel, or tract is owned, the owner or owners thereof would have one membership or voting interest for each separate lot, parcel or unit. In the event there are multiple owners of a lot or unit, the lot or unit retains one vote within 128 10 the Association. In no event shall multiple owners of a single lot, parcel or unit be granted additional voting rights by virtue of the lot, parcel or unit being owned by multiple owners. Membership interest shall run with the land so that said interest is an incident to ownership beginning when ownership rights are acquired and terminating when such rights are divested. Accordingly, no member shall be expelled, nor shall he be permitted to withdraw or resign while possessing a membership interest. The Board of Directors shall consist of not less than three (3) members and not more than five (5) members. The duties of each of the offices of the Board of Directors shall be as follows: A. President. The President shall preside over all meetings of the Association. He or she shall call the membership together whenever necessary. The President shall be the general administrative and executive officer of the Association, and shall perform such duties as may be specified, and exercise such powers as may be delegated to the office of President by the Board of Directors. The President shall also represent the SUD Phase 3 Block 3 Property Owners Association on the overall, governing SUD Property Owners Association. B. Vice-President. The Vice-President shall exercise the powers of the President in the absence of the President. C. Secretary-Treasurer. The Secretary shall give notice of all meetings of the Association, and shall keep a record of the proceedings of the meetings of the Association. The Secretary shall be authorized to sign on behalf of the Association, all records, documents and instruments when such are authorized to be signed by the Association. The Treasurer shall keep and maintain adequate and correct accounts of the accounts, properties, and business of the Association, including accounts of its assets, liabilities, receipts, disbursements, gains and losses of the Association. The Treasurer shall prepare and report such periodic accountings as shall be 129 11 required by the Association. Section 9. A vacancy in any office of the Association shall be filled by appointment by the Board of Directors until the next annual meeting or the successor is duly appointed or elected. ARTICLE V MEETINGS There shall be an annual meeting of the membership. The meeting shall be held on the 1st Tuesday of February, and the hour and place of such meeting shall be contained in the notice of meetings as hereinafter described. The annual meeting shall be the time for the conduct of any and all legitimate business of the Association, including review of the budget for the next year, election of directors and presentation of reports. Voting at all meetings shall be in the manner prescribed in these Bylaws. Special meetings may be called at any time upon the initiative of the President, or in the absence of the President, by the Vice-President. In addition, a special meeting shall be held upon the call by fifty percent (50%) of the members of the Association. Special meetings shall require seven (7) days notice, in writing. Notice of annual and special meetings shall be mailed to address for each member pursuant to the records of the Association. The presence of members, in person or by written proxy, representing 60% of the total votes of the membership shall constitute a quorum. All meetings both annual and special shall be presided over by the President of the Board of Directors or her/his appointed representative. Any meeting may be adjourned by the Board of Directors at their discretion, but any meeting adjourned before all its business is disposed of shall be reconvened within thirty (30) days of such adjournment upon due notice given. Resolutions as hereinafter described may be introduced by any member at any annual meeting provided such resolution in written form is presented to the Secretary of the Board no later than ten (10) days prior to the date of such meeting. Written notice of all meetings, annual and special, shall be mailed to every member 130 12 of record as of the date of mailing no later than ten (10) days and not more than fifty (50) days before the date of the meeting. It shall be the duty of each member to advise the Association of her/his current address. In the absence of such notice, the member's address shall be the address of record with the Gallatin County Assessor's office. All meetings may provide for telephonic and electronic participation, if the media is reasonably available for use. ARTICLE VI VOTING Each membership interest as defined in Article IV of these Bylaws shall have one (1) vote on all matters to come before the Association meeting. Voting of such interest shall be in the manner provided by the Board of Directors and in these Bylaws. Voting may be in person or by written proxy. ARTICLE VII RESOLUTIONS All matters that are the business and concern of the Association may be presented to the Association and meetings of the Association in the form of resolutions directed to the Board of Directors. Except for resolutions that contravene these bylaws, the Association Articles of Incorporation, if any, Covenants, if such resolutions are passed by over fifty percent (50%) of the said membership interest of record and eligible to vote shall be binding on the Board of Directors. Such binding resolution shall have the effect of compelling the Board of Directors to take positive action in response to the general inclination of the resolution. However, the scope, extent and specific character of all such action shall be within the final discretion of the Board of Directors. ARTICLE VIII POWERS AND DUTIES OF BOARD The Board of Directors shall have the following powers and duties: A. To enter into contracts and agreements as are necessary to affect the business of the Association. B. To provide for the construction, installation, acquisition, replacement, operation, maintenance and repair by the Association of buildings, equipment, common open space, facilities and services for recreation, 131 13 roads and alleys, fire protection and other services and functions of the Association. Contracts for such work with third parties which provide for a term or duration in excess of one year must be approved by a majority of the members, which approval may be ratified at the annual or any special meeting of the Association. C. To make and establish rules and regulations for the governance of facilities and the performing of such functions, the taking of such action and operating in such areas as are within the jurisdictions of the Association. D. To set a fine schedule and make dues, charges and assessments as described in these Bylaws and Covenants on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. E. To take necessary and appropriate action to collect assessments from members, including the filing of liens and prosecuting foreclosures as provided in these Bylaws. F. To call meetings of the Association, both annual and special, and to preside over such meetings and to give appropriate notice of such meetings as required by these Bylaws. G. To formulate and introduce resolutions at the meetings of the Association. H. To hold meetings of the Board of Directors as are necessary to conduct Association affairs. I. To exercise ultimate decisional power in and on all matters affecting the Association. J. To pay the expenses of the Association, including all taxes or assessments and to contract and pay for such insurance as may be necessary in the best interests of the Association, and to provide for the use and disposition of the insurance proceeds in the event of loss or damage. K. To fill vacancies on the Board by agreement of the remaining member(s), should the vacancy not, however, be filed by the Board, it may be filled by an election at an annual or special meeting wherein each membership interest shall have one (1) vote. L. To maintain lists of members. M. To keep records in a good and businesslike manner of all assessments made, all expenditures, and the status of each member's payments of assessment; and to make such records accessible at reasonable times to 132 14 all members. N. To provide municipal type facilities for the safety, comfort, health, well-being and pleasure of the residents and guests of residents. 0. To promote, conserve and preserve the premises. P. To do any and all things necessary to carry into effect these Bylaws and to implement the purposes as may be stated in the Articles of Incorporation and to do any and all things necessary to require compliance with and enforce Covenants which by reference therein are made a part of these Bylaws. Q. To deal with agencies, officers, boards, commissions, departments and bureaus or other governmental bodies in a federal, state, county and local basis to carry out the above powers, duties and responsibilities. R. To establish accounts for operating and/or development funds as set out in the Covenants. ARTICLE IX ASSESSMENTS, DUES, FEES, FINES and CHARGES The Association, acting through the Board of Directors, shall have the power to levy assessments, dues, fees, fines and charges on its members. The assessments levied shall be used exclusively to promote operations, maintenance, recreation, health, safety and welfare of the residents of the property and for the improvement and the maintenance of the common open spaces, storm water retention systems, parking areas, private streets, landscape maintenance, liability insurance, Association employees' wages, mailing costs and other related expenses incurred on behalf of the Association as further described hereafter. The assessments shall be levied consistent with Covenants. ARTICLE X BUDGETS On or before June 30th of each year, the Board shall prepare and mail to each member a budget for expenses for the forthcoming calendar year. The Board shall cause a copy of an operating statement to simultaneously be prepared showing income and disbursements for the preceding fiscal year. ARTICLE XI QUORUM Meetings of the Association shall be convened at the time and place contained in the notice of such meeting only if a quorum of the membership interest is present 133 15 either in person or by proxy. A quorum shall consist of not less than thirty percent (30%) of the total represented membership interest of the Association qualified and eligible to vote at the time. Any membership interest may be represented by the owner thereof or by his agent who has written authority to so act, including written proxy. ARTICLE XII VOTING INTEREST Whenever any lot, parcel or unit is owned or leased by two or more persons or by an entity, such person or persons or entity must, prior to a meeting where voting may be allowed, among and between themselves determine who is entitled to vote the membership interest and in what manner it shall be voted. If, in the judgment of the Board, a bona fide and irreconcilable dispute arises as to the voting or right to vote a membership interest, such interest may be declared to be a dispute and for the time such interest is in dispute, the member(s) holding such shall have no voting rights. ARTICLE XIII SECRETARY The Secretary of the Board of Directors shall maintain a record of all membership interests in the Association. In order to make a determination of membership interest for any purpose stated in these Bylaws or the laws of the State of Montana, the Board may order the record closed for a stated period of time. Notice of assessments and liability for assessments shall be in the name of the registered owner on the membership list at the time assessments are declared by the Board. ARTICLE XIV BOARD MEMBERS The Board of Directors shall be established consistent with the South University District Protective Agreements Binding All Property Owners (Covenants, Conditions and Restrictions). Members of the Board of Directors shall be authorized pursuant to the Covenants and these Bylaws. Members of the Board and their officers, assistant officers, agents and employees acting in good faith on behalf of the Association: (1) shall not be liable to the members or their respective owners or members as a result of their activities as such for any mistake of judgment, negligence or otherwise, except for their own willful misconduct or bad faith; (2) shall have no personal liability in contract to a member or any other person 134 16 or entity under any agreement, instrument or transaction entered into by them on behalf of the Association in their capacity as such; (3) shall have no personal liability in tort to any member or any person or entity, except for their own willful misconduct or bad faith; (4) shall have no personal liability arising out of the use, misuse or condition of the Property which might in any way be assessed against or imputed to them as a result of or by virtue of their capacity as such. ARTICLE XV TERMS AND REPLACEMENT The terms of office for members of the Board shall be three (3) year terms after the initial staggering of terms in which Board member 1 shall serve a one year term; Board members 2 and 3 shall serve a two year term and Board members 4 and 5 shall serve a three year term. The Declarant shall appoint the initial members to the Board of Directors. In the event of a vacancy during a term, the Board shall replace the board member. At the end of each term, the vacancy shall be filled by a vote of the members of the Association. ARTICLE XVI COMMITTEES Pursuant to the Title 35, Chapter 2, M.C.A. and subject to the restrictions stated therein the Board may appoint committees to act for the Board and to exercise the authority of the Board on matters referred to them by the Board. Such committees may be dissolved at any time by the Board of Directors. ARTICLE VII INSURANCE The Board may purchase insurance policies to protect the property of the Association against casualty loss and to protect the Association and the Board members, when acting in their official capacity, from liability. The extent and specific nature of coverage shall be determined by the Board. ARTICLE XVIII COVENANTS No acts by the Association or by the Board of Directors shall be contrary to the Covenants on file with the Clerk and Recorder of Gallatin County, Montana, and amendments thereto. On its own initiative, the Board may take such action as it deems necessary, including the taking of legal action and initiating suit to enforce the Covenants. 135 17 ARTICLE XX COMPENSATION Board members shall be reimbursed for any out-of-pocket expenses incurred while acting in their official capacity, but only to the extent approved by the other Board members. ARTICLE XXI SEVERABILITY A determination of invalidity of any one or more of the provisions or conditions hereof by judgment, order, or decree of a court shall not affect in any manner the other provisions hereof, which shall remain in full force and effect. ARTICLE XXII INTERPRETATION AND AMENDMENT The Board shall have the power to interpret all the provisions of these Bylaws and such interpretation shall be binding on all persons. These Bylaws may be amended from time to time whenever at least thirty percent (30%) of the membership interests shall have voted in favor of such amendment. THESE BYLAWS were adopted by the Board of Directors for SOUTH UNIVERSITY DISTRICT- PHASE 3 - BLOCK 3 PROPERTY OWNERS ASSOCIATION on the ________ day of______________ 20_____ 136 1 After recording return to: South University POA 22 Turtle Rock Court Tiburon, CA 94920 SOUTH UNIVERSITY DISTRICT PHASE 3 MAJOR SUBDIVISION-BLOCK 4 DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS AND RESTRICTIONS RTR Holdings, II, LLC a Montana limited liability company with address of 22 Turtle Rock Court, Tiburon, California 94920 ("Declarant"), is the owner of the real property described as Lot 1, Block 4 of South University District Phase 3 Major Subdivision, located in the NW1/4 of Section 24, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County Montana [Plat reference: J- 605]. Block 4, described above, is subject to these covenants and the covenants of the governing South University District Property Owners Association recorded at Doc. No. 2478012, as amended and corrected, and Doc. No. 2478013 in the office of Gallatin Montana County Clerk and Reorder, by the Declarant through the recording of this Declaration of Protective Covenants, Conditions and Restrictions ("Covenants") and any amendment hereto of either Association. PURPOSE The purpose of these Covenants is to protect and maintain property values, establish the Association and require compliance with the terms, conditions and restrictions stated herein and any other covenants and easements which encumber Block 4. Block 4 may be considered a sub-association as the same is recognized in the covenants of the governing South University District recorded at Doc. No. 2478012, as amended and corrected. Block 4 shall comply with the terms set forth herein specifically and the same shall not be applied to other sub-associations. 137 2 STREET FRONTAGE REQUIREMENTS The requirements of this Street frontage requirements section of the covenants are imposed as a condition of City of Bozeman final site plan approval and SHALL ONLY BE AMENDED in accordance with the amended procedure below, in addition to the affirmative vote to amend by the governing body of the City of Bozeman. 1. All street right of ways contiguous to or within the proposed development site not used for street pavement, curbs, gutters, sidewalks or driveways (i.e., street boulevards) shall be landscaped, as defined in the Bozeman Municipal code, and shall include one (1) large canopy tree for each 50 feet of total street frontage rounded to the nearest whole numbers. 2. For street trees, a city of Bozeman planting permit for street trees as well as utility locates shall be obtained prior to beginning any excavation in the City of Bozeman right of way. 3. The street tree planting hole shall be at least twice the diameter of the root ball, the root flare of the newly planted tree must be visible and above ground, and there shall be a mulch ring 3’-4’ in diameter around each newly planted boulevard tree. PHYSICAL MAINTENANCE REQUIREMENTS The requirements of this Physical Maintenance Requirements section of the covenants are imposed as a condition on Block 4 of City of Bozeman final site plan approval and SHALL ONLY BE AMENDED in accordance with the amended procedure below, in addition to the affirmative vote to amend by the governing body of the City of Bozeman. 1. The Association shall maintain the parking areas, private drive aisles, landscaped areas, public plazas and sidewalks. 2. The Association is responsible for ensuring the care, maintenance and replacement of the landscaping as required by the City of Bozeman in the same condition, qualities, species, and varieties in the locations as presented on the landscaping plan. 138 3 3. The South University District Phase 3, Block 4 Property Owner’s Association shall maintain its stormwater infrastructure in accordance with the Storm water Maintenance Plan, appended hereto and incorporated herein as Exhibit A. 4. All outdoor lighting shall be maintained to maximize illumination measured in foot- candles at the property not to exceed 0.3 onto the adjacent residential properties and 1.0 on the adjacent commercial properties and public rights-of-way. 5. The Association shall maintain the snow removal storage areas in a manner and with a method that such storage shall not cause unsafe ingress/egress to the parking areas and shall not be deposited in the public right-of-way. Further, snow storage shall not reduce the required parking spaces and shall not inhibit the parking area access. Additionally, snow storage shall not damage the landscaping. 6. No Owner, occupant, guest, licensee or invitee shall maintain a nuisance upon Block 4. In determining the existence of a nuisance, due consideration shall be given to the character of the development on Block 4 and the South University District as a whole as well as these Covenants, adopted plans and guidelines, design guidelines and other documents of a regulatory nature. ASSOCIATION and MEMBERSHIP An association is hereby established and known as the SUD Phase 3- Block 4 Property Owners Association ("Association"), which is subject to the covenants of the governing South University District overall Property Owners Association, and must elect a representative from its Board of Directors to represent the interests of the Phase 3, Block 4 tenants and businesses. Association may be incorporated under a different name as may be approved by the Montana Secretary of State. The purpose of the Association is to enforce the covenants and meet the operations, obligations and needs for Phase 3 Block 4. The Association shall be operated by a Board of Directors, which shall act by majority vote. The officers, terms, authority and election procedures are set forth in the Bylaws of the Association. Dues, assessments, fees, fines and charges shall be established by the Board of Directors and shall be presented to the Association members for approval at the annual meeting. 139 4 The Association shall have the authority to lien a lot, parcel or unit for non-payment of dues, assessments, fees, fines and charges. All owners of property within Block 4, as well as occupants, guests, licensees and invitees are bound and subject to the terms, conditions and restrictions of Covenants. The owner(s) shall be members of the SUD Phase 3- Block 4 Property Owners Association ("Association"), with voting rights. Members of the Association shall be individual owners of the real property within Block 4 or owners of units within Block 4 created by further subdivision or recording of a condominium regime under the Montana Unit Ownership Act of Block 4. Each lot, parcel or unit is entitled to one vote in the Association. In the event there are multiple owners of a lot or unit, the lot or unit retains one vote within the Association. In no event shall multiple owners of a single lot, parcel or unit be granted additional voting rights by virtue of the lot, parcel or unit being owned by multiple owners. AMENDMENTS Amendments to the portions of these Covenants not required by the City of Bozeman may be adopted by a vote of 2/3rds of the Board of Directors after having presented the same to the Association at a notice meeting. The Association shall be given the right to discuss and comment on any amendment. However, the right to amend the Covenants is exclusively within the authority of the Board of Directors. These covenants and association, which is a sub-association of South University District Protective Covenants Binding on all Property Owners (Covenants, Conditions and Restrictions) as recorded as Doc. No. 2478012, as amended and correct. Upon a vote of one hundred percent (100%) of the owners of Block 1, these covenants and the association may be consolidated into the South University District Protective Covenants Binding on all Property Owners (Covenants, Conditions and Restrictions) as recorded as Doc. No. 2478012, as amended and corrected and the Bylaws thereof. Amendments which are requirements of the City of Bozeman final site plan approval must be approved by a majority of the Board of Directors and a majority of the governing body of the City of Bozeman. All amendments must be recorded in the office of Gallatin County Montana Clerk and Recorder. 140 5 DURATION These Covenants shall run with the land and are binding upon the land, its occupants and shall be enforceable by the Association and members. The Covenants are effective as of the date of recording and shall continue for a period of 25 years, after which time these Covenants shall automatically renew and extend for successive ten (10) year periods unless amended by the Board of Directors with the consent of the governing body of the City of Bozeman. Dated this______day of_____________________________________20___. Declarant:________________________ RTR Holding, LLC BY: Three Rivers Capital, LLC, STATE OF ) :ss. County of _ ) On this ___day of_____________________ 20_____, the undersigned, a Notary Public of the State of _______ , personally appeared before me being the Member of Three Rivers Capital, LLC, Manager of RTR Holdings, LLC, known to me to be the person that executed the within instrument and acknowledged to me he executed the same on behalf of the LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the day and year first above written. (seal) NOTARY PUBLIC for the State of___________ Printed Name:__________________________ 141 6 EXHIBIT A- Storm Water Maintenance Plan. (a) General Information. The South University District Phase 3 Major Subdivision utilizes conventional stormwater collection to mitigate storm water impacts. The storm water facilities consist of curb and gutter, drainage swales, onsite and offsite conveyance piping, below grade retention chambers, and an existing offsite detention basin located in the city park. The system is designed to accommodate all storm water from the Property. A document entitled Storm Water Management Plan and Record Drawings are on file at the City of Bozeman, Engineering Department. The storm water conveyance facilities located on the property are privately owned and maintained. It is the property owner association's responsibility to maintain the storm water facilities located on the property. The storm water facilities are designed to operate without excessive maintenance. However, like all infrastructure, periodic maintenance will prevent costly repair and replacement. The maintenance plan set forth in this Section has been prepared in accordance with City of Bozeman guidelines. Over time, recommended maintenance guidelines may evolve. Please contact the City of Bozeman Storm Water Division if any questions arise. (b) Storm Water Facilities Maintenance Schedule. (i) Site Housekeeping. Site housekeeping is to be conducted continuously as needed. The main cause of storm water facility damage is poor site housekeeping. Sediment tracked onto pavement can be washed into storm water inlets/ conveyance piping and damage these facilities. Trash can clog pipes and inlet structures causing property damage. Site housekeeping consists of the following: • Keep sidewalk and pavement areas clean • Pick up trash • Restore damaged landscaping in order to prevent sediment runoff (ii) System Monitoring. System monitoring is to be conducted quarterly, except in winter. The storm water facilities shall be inspected quarterly to quickly identify small issues before expensive damage can occur. In addition to regular · monitoring, the best time to inspect the 142 7 performance of storm water facilities is during runoff events. System monitoring consists of the following: • Observe system during runoff. Look for ponding outside of stormwater inlets. This can indicate a clogged inlet or pipe. • Inspect inlets, manholes and pipes (iii) Inlet, Manhole, and Piping Quarterly Maintenance. Inlet, manhole, and piping maintenance is to be conducted quarterly. All storm water inlets and manholes have a sump to capture sediment. If this sediment is not periodically removed it can wash downstream and clog infiltration facilities. The sump is typically visible from the surface through the inlet grate. Inlet, manhole, and piping maintenance consists of the following: • Remove visible sediment from sump. • Inspect pipe inlets and outlets for sediment in pipe, and remove if present. (iv) Inlet, Manhole, and Piping Long-term Maintenance. This maintenance is to be conducted long-term if and when necessary. If regular housekeeping and maintenance is not performed adequately, sediment and debris can accumulate in the storm water conveyance piping, and pipes may become clogged. Long-term inlet, manhole, and piping maintenance consist of the following: • Hire a contractor to clean pipes and remove all sediment encountered from manhole sumps, inlet sumps and/or piping. (v) Below-grade Retention Chambers Long-term Maintenance. This maintenance is to be conducted on an annual basis at a minimum. If regular housekeeping and maintenance is not performed adequately, sediment and debris will accumulate in the underground stormwater retention basins, and could negatively affect the stormwater percolation rate. Retention pond maintenance consists of the following: • Remove underground chamber’s inspection ports • Record the depth from the rim of the inspection port to the 143 8 chamber’s floor. If the measurement changes by 0.1’ between any reading, or sediment accumulates to a depth of 0.1’ above the bottom of the chamber, • Hire a contractor to flush and clean out the stormwater storage chambers. (vi) Detention Ponds: Long-term Maintenance. This maintenance is to be conducted on an annual basis at a minimum. If regular housekeeping and maintenance is not performed adequately, sediment and debris will accumulate stormwater detention ponds, and could negatively affect the stormwater capacity. Detention pond maintenance consists of the following: • Inspect for sediment accumulation annually • Inspect for noxious weeds or undesirable vegetation semi- annually during the growing season (March-October) • Inspect water levels after storm events • Inspect for oil sheens and/or trash on a monthly basis • Inspect inlet and outlet piping on a quarterly basis or after any storm events • Inspect interiors of catch basins and manholes annually for debris and sediment. 144 9 BYLAWS OF SOUTH UNIVERSITY DISTRICT – PHASE 3 - BLOCK 4 PROPERTY OWNERS ASSOCIATION ARTICLE I NAME South University District - Phase 3 - Block 4 Property Owners Association ("Association") is the organization which is to be governed by and which is empowered to act in accordance with these Bylaws. The Association may be incorporated and maintain its incorporation status. ARTICLE II ADDRESS The address of the initial principal office of the Association shall be: 950 Trailcrest Drive Bozeman, MT 59718 ARTICLE III POWERS The Association shall have all the powers and authority to operate and meet the needs of Block 4, including enforcement of the South University District - Phase 3- Block 4 Declaration of Protective Covenants, Conditions and Restrictions as well as those of a nonprofit corporation enumerated and set forth in Title 35, Chapter 2, M.C.A. ARTICLE IV MEMBERSHIP INTEREST and OFFICERS The owner(s) shall be members of the SUD Phase 3- Block 4 Property Owners Association ("Association"), with voting rights. Members of the Association shall be individual owners of the real property within Block 4 or owners of units within Block 4 created by further subdivision or recorded condominium regime of Block 4. Each lot, parcel or unit is entitled to one vote in the Association. Multiple owners of a single parcel of real property would have collectively one such membership or voting interest. If more than one condominium unit, lot, parcel, or tract is owned, the owner or owners thereof would have one 145 10 membership or voting interest for each separate lot, parcel or unit. In the event there are multiple owners of a lot or unit, the lot or unit retains one vote within the Association. In no event shall multiple owners of a single lot, parcel or unit be granted additional voting rights by virtue of the lot, parcel or unit being owned by multiple owners. Membership interest shall run with the land so that said interest is an incident to ownership beginning when ownership rights are acquired and terminating when such rights are divested. Accordingly, no member shall be expelled, nor shall he be permitted to withdraw or resign while possessing a membership interest. The Board of Directors shall consist of not less than three (3) members and not more than five (5) members. The duties of each of the offices of the Board of Directors shall be as follows: A. President. The President shall preside over all meetings of the Association. He or she shall call the membership together whenever necessary. The President shall be the general administrative and executive officer of the Association, and shall perform such duties as may be specified, and exercise such powers as may be delegated to the office of President by the Board of Directors. The President shall also represent the SUD Phase 3 Block 4 Property Owners Association on the overall, governing SUD Property Owners Association. B. Vice-President. The Vice-President shall exercise the powers of the President in the absence of the President. C. Secretary-Treasurer. The Secretary shall give notice of all meetings of the Association, and shall keep a record of the proceedings of the meetings of the Association. The Secretary shall be authorized to sign on behalf of the Association, all records, documents and instruments when such are authorized to be signed by the Association. The Treasurer shall keep and maintain adequate and correct accounts of the 146 11 accounts, properties, and business of the Association, including accounts of its assets, liabilities, receipts, disbursements, gains and losses of the Association. The Treasurer shall prepare and report such periodic accountings as shall be required by the Association. Section 9. A vacancy in any office of the Association shall be filled by appointment by the Board of Directors until the next annual meeting or the successor is duly appointed or elected. ARTICLE V MEETINGS There shall be an annual meeting of the membership. The meeting shall be held on the 1st Tuesday of February, and the hour and place of such meeting shall be contained in the notice of meetings as hereinafter described. The annual meeting shall be the time for the conduct of any and all legitimate business of the Association, including review of the budget for the next year, election of directors and presentation of reports. Voting at all meetings shall be in the manner prescribed in these Bylaws. Special meetings may be called at any time upon the initiative of the President, or in the absence of the President, by the Vice-President. In addition, a special meeting shall be held upon the call by fifty percent (50%) of the members of the Association. Special meetings shall require seven (7) days notice, in writing. Notice of annual and special meetings shall be mailed to address for each member pursuant to the records of the Association. The presence of members, in person or by written proxy, representing 60% of the total votes of the membership shall constitute a quorum. All meetings both annual and special shall be presided over by the President of the Board of Directors or her/his appointed representative. Any meeting may be adjourned by the Board of Directors at their discretion, but any meeting adjourned before all its business is disposed of shall be reconvened within thirty (30) days of such adjournment upon due notice given. Resolutions as hereinafter described may be introduced by any member at any annual meeting provided such resolution in written form is presented to the 147 12 Secretary of the Board no later than ten (10) days prior to the date of such meeting. Written notice of all meetings, annual and special, shall be mailed to every member of record as of the date of mailing no later than ten (10) days and not more than fifty (50) days before the date of the meeting. It shall be the duty of each member to advise the Association of her/his current address. In the absence of such notice, the member's address shall be the address of record with the Gallatin County Assessor's office. All meetings may provide for telephonic and electronic participation, if the media is reasonably available for use. ARTICLE VI VOTING Each membership interest as defined in Article IV of these Bylaws shall have one (1) vote on all matters to come before the Association meeting. Voting of such interest shall be in the manner provided by the Board of Directors and in these Bylaws. Voting may be in person or by written proxy. ARTICLE VII RESOLUTIO NS All matters that are the business and concern of the Association may be presented to the Association and meetings of the Association in the form of resolutions directed to the Board of Directors. Except for resolutions that contravene these bylaws, the Association Articles of Incorporation, if any, Covenants, if such resolutions are passed by over fifty percent (50%) of the said membership interest of record and eligible to vote shall be binding on the Board of Directors. Such binding resolution shall have the effect of compelling the Board of Directors to take positive action in response to the general inclination of the resolution. However, the scope, extent and specific character of all such 148 13 action shall be within the final discretion of the Board of Directors. ARTICLE VIII POWERS AND DUTIES OF BOARD The Board of Directors shall have the following powers and duties: A. To enter into contracts and agreements as are necessary to affect the business of the Association. B. To provide for the construction, installation, acquisition, replacement, operation, maintenance and repair by the Association of buildings, equipment, common open space, facilities and services for recreation, roads and alleys, fire protection and other services and functions of the Association. Contracts for such work with third parties which provide for a term or duration in excess of one year must be approved by a majority of the members, which approval may be ratified at the annual or any special meeting of the Association. C. To make and establish rules and regulations for the governance of facilities and the performing of such functions, the taking of such action and operating in such areas as are within the jurisdictions of the Association. D. To set a fine schedule and make dues, charges and assessments as described in these Bylaws and Covenants on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. E. To take necessary and appropriate action to collect assessments from members, including the filing of liens and prosecuting foreclosures as provided in these Bylaws. F. To call meetings of the Association, both annual and special, and to preside over such meetings and to give appropriate notice of such meetings as required by these Bylaws. G. To formulate and introduce resolutions at the meetings of the Association. H. To hold meetings of the Board of Directors as are necessary to conduct Association affairs. I. To exercise ultimate decisional power in and on all matters affecting the Association. J. To pay the expenses of the Association, including all taxes or assessments and to contract and pay for such insurance as may be necessary in the best interests of the Association, and to provide for the 149 14 use and disposition of the insurance proceeds in the event of loss or damage. K. To fill vacancies on the Board by agreement of the remaining member(s), should the vacancy not, however, be filed by the Board, it may be filled by an election at an annual or special meeting wherein each membership interest shall have one (1) vote. L. To maintain lists of members. M. To keep records in a good and businesslike manner of all assessments made, all expenditures, and the status of each member's payments of assessment; and to make such records accessible at reasonable times to all members. N. To provide municipal type facilities for the safety, comfort, health, well-being and pleasure of the residents and guests of residents. 0. To promote, conserve and preserve the premises. P. To do any and all things necessary to carry into effect these Bylaws and to implement the purposes as may be stated in the Articles of Incorporation and to do any and all things necessary to require compliance with and enforce Covenants which by reference therein are made a part of these Bylaws. Q. To deal with agencies, officers, boards, commissions, departments and bureaus or other governmental bodies in a federal, state, county and local basis to carry out the above powers, duties and responsibilities. R. To establish accounts for operating and/or development funds as set out in the Covenants. ARTICLE IX ASSESSMENTS, DUES, FEES, FINES and CHARGES The Association, acting through the Board of Directors, shall have the power to levy assessments, dues, fees, fines and charges on its members. The assessments levied shall be used exclusively to promote operations, maintenance, recreation, health, safety and welfare of the residents of the property and for the improvement and the maintenance of the common open spaces, storm water retention systems, parking areas, private streets, landscape maintenance, liability insurance, Association employees' wages, mailing costs and other related expenses incurred on behalf of the Association as further described hereafter. The assessments shall be levied consistent with Covenants. 150 15 ARTICLE X BUDGETS On or before June 30th of each year, the Board shall prepare and mail to each member a budget for expenses for the forthcoming calendar year. The Board shall cause a copy of an operating statement to simultaneously be prepared showing income and disbursements for the preceding fiscal year. ARTICLE XI QUORUM Meetings of the Association shall be convened at the time and place contained in the notice of such meeting only if a quorum of the membership interest is present either in person or by proxy. A quorum shall consist of not less than thirty percent (30%) of the total represented membership interest of the Association qualified and eligible to vote at the time. Any membership interest may be represented by the owner thereof or by his agent who has written authority to so act, including written proxy. ARTICLE XII VOTING INTEREST Whenever any lot, parcel or unit is owned or leased by two or more persons or by an entity, such person or persons or entity must, prior to a meeting where voting may be allowed, among and between themselves determine who is entitled to vote the membership interest and in what manner it shall be voted. If, in the judgment of the Board, a bona fide and irreconcilable dispute arises as to the voting or right to vote a membership interest, such interest may be declared to be a dispute and for the time such interest is in dispute, the member(s) holding such shall have no voting rights. ARTICLE XIII SECRETARY The Secretary of the Board of Directors shall maintain a record of all membership interests in the Association. In order to make a determination of membership interest for any purpose stated in these Bylaws or the laws of the State of Montana, the Board may order the record closed for a stated period of time. Notice of assessments and liability for assessments shall be in the name of the registered owner on the membership list at the time assessments are declared by the Board. 151 16 ARTICLE XIV BOARD MEMBERS The Board of Directors shall be established consistent with the South University District Protective Agreements Binding All Property Owners (Covenants, Conditions and Restrictions). Members of the Board of Directors shall be authorized pursuant to the Covenants and these Bylaws. Members of the Board and their officers, assistant officers, agents and employees acting in good faith on behalf of the Association: (1) shall not be liable to the members or their respective owners or members as a result of their activities as such for any mistake of judgment, negligence or otherwise, except for their own willful misconduct or bad faith; (2) shall have no personal liability in contract to a member or any other person or entity under any agreement, instrument or transaction entered into by them on behalf of the Association in their capacity as such; (3) shall have no personal liability in tort to any member or any person or entity, except for their own willful misconduct or bad faith; (4) shall have no personal liability arising out of the use, misuse or condition of the Property which might in any way be assessed against or imputed to them as a result of or by virtue of their capacity as such. ARTICLE XV TERMS AND REPLACEMENT The terms of office for members of the Board shall be three (3) year terms after the initial staggering of terms in which Board member 1 shall serve a one year term; Board members 2 and 3 shall serve a two year term and Board members 4 and 5 shall serve a three year term. The Declarant shall appoint the initial members to the Board of Directors. In the event of a vacancy during a term, the Board shall replace the board member. At the end of each term, the vacancy shall be filled by a vote of the members of the Association. ARTICLE XVI COMMITTEES Pursuant to the Title 35, Chapter 2, M.C.A. and subject to the restrictions stated therein the Board may appoint committees to act for the Board and to exercise the authority of the Board on matters referred to them by the Board. Such 152 17 committees may be dissolved at any time by the Board of Directors. ARTICLE XVII INSURANCE The Board may purchase insurance policies to protect the property of the Association against casualty loss and to protect the Association and the Board members, when acting in their official capacity, from liability. The extent and specific nature of coverage shall be determined by the Board. ARTICLE XVIII COVENANTS No acts by the Association or by the Board of Directors shall be contrary to the Covenants on file with the Clerk and Recorder of Gallatin County, Montana, and amendments thereto. On its own initiative, the Board may take such action as it deems necessary, including the taking of legal action and initiating suit to enforce the Covenants. ARTICLE XX COMPENSATI ON Board members shall be reimbursed for any out-of-pocket expenses incurred while acting in their official capacity, but only to the extent approved by the other Board members. ARTICLE XXI SEVERABILITY A determination of invalidity of any one or more of the provisions or conditions hereof by judgment, order, or decree of a court shall not affect in any manner the other provisions hereof, which shall remain in full force and effect. ARTICLE XXII INTERPRETATION AND AMENDMENT The Board shall have the power to interpret all the provisions of these Bylaws and such interpretation shall be binding on all persons. These Bylaws may be amended from time to time whenever at least thirty percent (30%) of the 153 18 membership interests shall have voted in favor of such amendment. THESE BYLAWS were adopted by the Board of Directors for SOUTH UNIVERSITY DISTRICT- PHASE 3 - BLOCK 4 PROPERTY OWNERS ASSOCIATION on the ________ day of______________ 20_____ 154 11 PARKS MASTER PLAN: ATTACHMENT 2 12III: EXHIBITS III. Exhibits: Exhibit 1: PL-1 Park Master Landscape Plan EXHIBIT 1155 M 711'-1"560'-5"SIO SIO SIO SIO SIO SIO SIO SIO SIO SIO SIOLAN LAN LAN LAN LANLAN LAN PLAT PLAT PLAT PLAT PLAT PLAT PLATPLAT 749'-7" SNOSNOSNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO SNO TYP., SEE CIVIL NEW DETENTION POND WATERCOURSE SETBACK (ZONE 1) WATERCOURSE SETBACK (ZONE 2) UTILITY SLEEVES TYP., SEE CIVIL UTILITY SLEEVES TYP., SEE CIVIL BOULEVARD LANDSCAPING WATER CONNECTION CAMPUS BLVD (48' WIDTH - 90' ROW) 15'8' POPULUS SONGARICA SONGARICA POPLAR POPULUS ACUMINATA LANCELEAF POPLAR SALIX LUTEA YELLOW WILLOW SALIX GEYERIANA GEYER WILLOW SHRUBS 5 GAL TREES SYMBOL BOTANICAL NAME SIZE TYPE SPACING QUANTITYCOMMON NAME PLANT SCHEDULE: WATERCOURSE SETBACK AND DETENTION POND 1.5" CAL B & B PER PLAN 11 MATURE HEIGHT 40' - 50' MATURE SPREAD 30' - 35' 1.5" CAL B & B PER PLAN 7 40' - 60'35' - 50' *** DROUGHT TOLERANT SPECIES SEE SEED MIX TABLE FOR SPECIFICATIONS B & B PER PLANPRUNUS VIRGINIANA NATIVE CHOKECHERRY 6'-8' B & B PER PLAN PER PLANB & B 6'-12'6'-8'7 GAL 7 13 8 6'-10'6'-10' SIO LAN TREES SYMBOL BOTANICAL NAME SIZE TYPE SPACING #COMMON NAME PLANT SCHEDULE GLEDITSIA TRIACANTHOS VAR. INERMIS 'HARVE'*** NORTHERN ACCLAIM THORNLESS HONEYLOCUST 1.5" CAL B & B PER PLAN 36 MATURE HEIGHT 40' - 50' MATURE SPREAD 30' - 35' TILIA CORDATA*** LITTLE LEAF LINDEN 1.5" CAL B & B PER PLAN 26 40' - 60'35' - 50' ULMUS AMERICANA 'LEWIS & CLARK'*** PRAIRIE EXPEDITION AMERICAN ELM 1.5" CAL B & B PER PLAN 13 40' - 60'30' - 60' CRATAEGUS MORDENENSIS*** RUSSIAN HAWTHORNE 'SNOWBIRD'1.5" CAL B & B PER PLAN 48 12' - 15'20' *** DROUGHT TOLERANT SPECIES SEE SEED MIX TABLE FOR SPECIFICATIONS SPIRAEA BETULIFOLIA *** TOR SPIRAEA JUNIPERUS SABINA 'BUFFALO' *** BUFFALO JUNIPER CALAMAGROSTIS x ACUTIFLORA 'EL DORADO' KARL FOERESTER 'EL DORADO' *** SHRUBS PERENNIALS AND ORNAMENTAL GRASSES 5 GAL POT PER PLAN 24 3'-4'3'-4' 5 GAL POT PER PLAN 19 8"-12"5'-8' 1 GAL POT PER PLAN 15 4'-6'2'-3' PLAT ACER PLATANOIDES NORWAY MAPLE 1.5" CAL B & B PER PLAN 8 35' - 50'30' - 50' SNO MULCH MATERIAL 3' DIAMETER MULCH RINGS AROUND EACH BLVD TREE - TO BE 3" IN DEPTH. SHREDDED CEDAR MULCH 917 SF SYMBOL SEED/SOD MIXES LBS/ACRE QUANTITYCOMMON NAME (BOTANICAL NAME) RECOMMENDED NATIVE/UPLAND SEED BLEND & WATERCOURSE ZONE 2 SLENDER WHEATGRASS (AGROPYRON TRACHYCAULUM) "SODAR" STREAMBANK WHEATGRASS (AGROPYRON RIPARIUM) CANADA WILDRYE (ELYMUS CANADENSIS) SHEEP FESCUE (FESTUCA OVINA) WESTERN WHEATGRASS (AGROPYRON SMITHII) 4.0 5.0 4.0 1.0 4.0 29,500 SF LAWN AND BOULEVARD SEED MIX 100,826 SF SOD AND SEED SCHEDULE DETENTION POND AND ZONE 1 WATERCOURSE SEED MIX SLENDER WHEATGRASS (AGROPYRON TRACHYCAULUM) "SODAR" STREAMBANK WHEATGRASS (AGROPYRON RIPARIUM) GLYCERIA STRIATA (FOWL MANNAGRASS) DESCHAMPSIA CAESPITOSA (TUFTED HAIRGRASS) POA PALUSTRIS (FOWL BLUEGRASS) JUNCUS TENUIS (SLENDER RUSH) 6.5 5.0 0.5 3.5 0.25 0.06 34,500 SF COMMON KENTUCKY BLUEGRASS 26% NEWPORT KENTUCKY BLUEGRASS 27% PARK KENTUCKY BLUEGRASS 27% PERENNIAL RYEGRASS 12% CREEPING RED FESCUE 8% APPLY AT 4 LBS./ 1000SF4020080 N 1 L104 1"=40'-0" Landscape Plan Enlargement Landscape Plan Enlargement L 104 design5la.com 406.587.4873 date issue drawn by:checked by:filename:z:\south university district\autocad\01_sheets\l100_south university district_landscape.dwgSouth University District Phase ThreeBozeman, MontanaMJCTMS02/19/19 Pre Plat 06/11/19 Pre PlatMATCHLINE SHEET L103156 STUCKY RD(48' WIDTH - 90' ROW)EEEEECCCSTUCKY RD(48' WIDTH - 90' ROW)S 17TH AVE(47' WIDTH - 70' ROW)S 19TH AVE(ROW WIDTH VARIES)TRAILC 4.9STUCKY RD -ROAD ANDSTORM P&PPROFESSIONALENGINEERS &SURVEYORSSUD PHASE 3 STAHLYENGINEERING& ASSOCIATESRTR HOLDINGS II, LLC 157 Memorandum REPORT TO:City Commission FROM:Karl Johnson, Engineer I Scott Shirley, Interim Public Works Director SUBJECT:Authorize the City Manager to Sign a Sewer and Access Easement and Agreement with Bridger Peaks Holding, LLC and Saccoccia Lands, LLC for the Bozeman East Mixed Use Phase 1 & 2 Project (19231) MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Agreement - Property RECOMMENDATION:Authorize the City Manager to sign a Sewer and Access Easement and Agreement with Bridger Peaks Holding, LLC and Saccoccia Lands, LLC for the Bozeman East Mixed Use Phase 1 & 2 Project (19231). STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:Attached is a copy (original to City Clerk) of the partially executed agreement. Engineering staff reviewed the document and found it to be acceptable. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:N/A Attachments: Sewer and Access Easement and Agreement Report compiled on: July 19, 2021 158 159 160 161 162 163 Memorandum REPORT TO:City Commission FROM:Taylor Lonsdale, Transportation Engineer Scott Shirley, Director of Public Works SUBJECT:Authorize the City Manager to Sign Temporary Construction Permits and Right-of-Way Documents with Charles Gensemer and Century Warehousing, Inc for the Griffin Drive and Manley Road Street and Stormwater Improvements Project MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Agreement - Property RECOMMENDATION:Authorize the City Manager to sign Temporary Construction Permits and Right-of-Way documents with Charles Gensemer and Century Warehousing, Inc for the Griffin Drive and Manley Road Street and Stormwater Improvements project. STRATEGIC PLAN:4.5 Housing and Transportation Choices: Vigorously encourage, through a wide variety of actions, the development of sustainable and lasting housing options for underserved individuals and families and improve mobility options that accommodate all travel modes. BACKGROUND:The Griffin Drive and Manley Road Street and Stormwater Improvement project generally consists of construction of a new three-lane roadway on Griffin Drive from Maus Lane to Rouse Avenue with curb and gutter, separated multi-use pathways on both sides, a traffic signal at Manley Road, lighting and utility improvements. The project also includes construction of approximately 200 feet of Manley Road from Griffin Drive to the south end of the Manley Road reconstruction project, which was completed in 2020. In order to construct these improvements it is necessary to acquire the right of way described herein. The attached documents have been executed by the property owners, and are necessary for the completion of the project. The valuations used for these acquisitions were established through the work of Sanderson Stewart. UNRESOLVED ISSUES:None. ALTERNATIVES:None identified or recommended. FISCAL EFFECTS:Compensation for the Temporary Construction Easements is $500.00 for each agreement, a total of $1000.00. The funds for this are part of SIF113 Griffin (7th to Rouse) - Construction 164 Attachments: Century Warehousing_Construction Permit.pdf Century Warehousing_ROW Agreement.pdf Gensemer_Construction Permit.pdf Gensemer_ROW Agreement.pdf Report compiled on: July 21, 2021 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 Memorandum REPORT TO:City Commission FROM:Emily Cope,Economic Development Director Downtown Bozeman Partnership SUBJECT:Authorize the City Manager to Sign A Professional Services Agreement Between the City of Bozeman and the Downtown Bozeman Partnership for the Administration of the Downtown Business Improvement District for Fiscal Year 2022 MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Agreement - Agency/Non-profit RECOMMENDATION:Authorize the City Manager to Sign the PSA with the Downtown Partnership. STRATEGIC PLAN:1.4 Business and Institutional Partnerships: Explore opportunities for partnerships with key business groups and non-profit organizations. BACKGROUND:As allowed by statute (MCA 7-12-1131), the City annually contracts the Downtown Bozeman Partnership to administer the Downtown Business Improvement District. UNRESOLVED ISSUES:None. ALTERNATIVES:As directed by the City Commission. FISCAL EFFECTS: As specified in its annual work plan and budget, the Downtown BID pays a fee to the Downtown Partnership to cover the administrative costs of managing the district and implementing the annual work plan. The FY2022 Downtown BID work plan and budget was unanimously approved by the board on May 19, 2021 and presented to the City Commission on June 15, 2021. Attachments: CC Memo for COB-DBP PSA FY22 BID.docx DBP-COB PSA for Management of BID District--FY2022.pdf Report compiled on: July 20, 2021 180 CITY COMMISSION MEMORANDUM TO:Mayor Andrus and City Commission FROM:Emily Cope, Economic Development Director Downtown Bozeman Partnership SUBJECT:Professional Services Agreement between the City of Bozeman and the Downtown Bozeman Partnership for the administration of the Downtown Business Improvement District for Fiscal Year 2022. MEETING DATE:TBD AGENDA ITEM TYPE:Consent RECOMMENDATION: Authorize the City Manager to Sign the PSA with the Downtown Partnership. BACKGROUND: As allowed by statute (MCA 7-12-1131), the City annually contracts the Downtown Bozeman Partnership to administer the Downtown Business Improvement District. FISCAL EFFECTS:As specified in its annual work plan and budget, the Downtown BID pays a fee to the Downtown Partnership to cover the administrative costs of managing the district and implementing the annual work plan. The FY2022 Downtown BID work plan and budget was unanimously approved by the board on May 19, 2021 and presented to the City Commission on June 15, 2021. UNRESOLVED ISSUES:None. ATTACHMENTS:The following documentation is included as a single attachment: Professional Services Agreement FY2022 Downtown BID Work Plan and Budget Prepared by Emily Cope. 181 Professional Services Agreement Regarding the Administration and Management of the Downtown Bozeman Business Improvement District WHEREAS, the Downtown Business Improvement District was created May 15, 2000 by Commission Ordinance No. 1517; and WHEREAS, the Downtown Business Improvement District was created on August 12, 2010 by Commission Ordinance No. 1790; and WHEREAS, the Downtown Business Improvement District was created on August 11, 2020 by Commission Ordinance No. 2040; and WHEREAS, the Downtown BID Board is authorized to employ the necessary staff to implement the Business Improvement District pursuant to 7-12-1131 MCA; 7-12-1131 Powers Of Board In Administering District. The board in administering a district has all powers necessary to carry out functions of the district contained in the ordinance creating it, including the power to: (7) provide for the management and administration of the affairs of the district.” NOW, THEREFORE, the Downtown Bozeman Partnership and City of Bozeman enter into this Professional Services Agreement defining the administration and management of the Downtown Bozeman Business Improvement District. THIS AGREEMENT is made and entered into this ____ day of ________________, 2021 (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and the DOWNTOWN BOZEMAN PARTNERSHIP, LLC, a limited liability company, with a physical and mailing address of 222 East Main Street #302, Bozeman, MT, 59715, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for the City the services described in the Scope of Services attached hereto as Exhibit “A” and by this reference made a part hereof. 182 2. Term/Effective Date: This Agreement is effective upon the date of its execution and will terminate on the 30th day of June 2022. 3. Scope of Work: Contractor will provide administrative and management services to the Board pursuant to the BID FY2022 Work Plan and Budget outlined in the Scope of Services, Exhibit “A”. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services, Exhibit “A” as the “Downtown Partnership Management Fee”. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance 183 in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) 184 thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions 185 of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 186 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Anna Rosenberry (Assistant City Manager) or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Emily Cope (DBP Economic Development Director) or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 187 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign 188 Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 189 190 Scope of Services: Exhibit “A” Downtown Business Improvement District FY2022 BID Work Plan and Budget BID Mission Statement The BID is an organization of downtown property owners who through thoughtful, pro-active collaboration and partnership with local government, business owners, residents and citizens strive to create a shared vision and voice for the community of downtown Bozeman. The BID will commit resources, identify, plan and act on short- term and long-term initiatives otherwise unavailable to individual owners. The BID has a goal of ensuring the long-term preservation and vitality of the city’s underlying economic, cultural, social and environmental assets and the BID will work together to keep our downtown a safe, beautiful and vibrant place. BID Assessment Programs The following programs are funded by the special assessments collected from property owners within the Business Improvement District. The BID assessment for FY2022 will be $185,000 as approved by the board at the May 19, 2021 board meeting The BID will also receive approximately $41,600 in additional revenue from sponsorships and maintenance contracts. Downtown Bozeman Partnership ($58,750) The BID is a member of the Downtown Bozeman Partnership. The BID contributes to the administration of the Downtown Partnership office located at 222 East Main Street. Downtown Bozeman Association ($26,150) The BID contributes to the DBA to support its events, staff and marketing efforts to promote downtown. The DBA hosts events downtown that include Art Walks, Christmas Stroll, Music on Main, Crazy Days, Cruisin’ on Main Car Show, Bridal Walk and more. New Program ($15,000) The BID funded a pilot program during summer of 2021 for street outreach. The board will discuss and vote on funding of a new program in FY22. The new program could be street outreach, sidewalk pressure washing, district wide wireless internet, or another as needs arise for the district. Summer Flowers ($25,000) The BID purchases, installs and maintains (which includes watering 7 days a week) 270 hanging baskets of Super- Petunias. These flower baskets are hung throughout downtown from June through September on the historic lamp posts. This program grows each year as additional historic street lamps are installed downtown. Holiday Lighting ($4,900) The BID installs the following holiday lighting downtown: 1) lighted garland on each historic lamp post along Main Street; 2) lights on the large conifer trees in Soroptomist Park; 3) garland wreaths at the Rouse, Church, Wallace, and Grand intersections; and 4) the infamous holiday “spider” decoration above the downtown intersections. 191 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2022 Page 11 of 12 Maintenance Program ($66,600) The BID hires two full-time maintenance employees in addition to two part-time maintenance employees for the summer months. Primary tasks performed by the BID maintenance staff includes garbage collection, flower watering, tree watering, Soroptomist Park upkeep, installation of the light pole banners, maintenance of pedestrian benches, graffiti removal, and limited snow removal. The BID maintenance staff removed over 3640 bags of garbage and recycling during the past year. Graffiti Removal Program ($5,625) The BID comprehensive graffiti removal program is in its third year of operation. Since 2009, this program has removed 3500 graffiti tags. The BID maintenance staff removes tags from public property and works with property owners to clean private buildings of graffiti. The BID will continue to actively remove new tags as quickly as possible considering immediate removal has proven to be the most effective deterrent. Downtown Banners ($3,000) The BID purchases, installs and maintains the downtown light pole banners. Seasonally the BID installs banners for MSU, Bozeman Farmers Market, Bridger Bowl, Big Sky Resort, Sweet Pea, Yellowstone Forever, Bridgercare and Greater Yellowstone Coalition. Tree Replacement ($2,000) The BID replaces trees that have died in the downtown district. In coordination with the City Forestry Division, dead trees are removed and then replaced by a local nursery. Smaller newly planted trees are susceptible due to physical damage and insufficient water. The BID replaces between two and six trees a year. Downtown Marketing ($2,500) The BID contributes to the general marketing of downtown Bozeman. These funds are made available to the Downtown Partnership which places advertisements in ten to twelve local, regional and state-wide publications. Vehicle Maintenance ($7,550) The BID owns and maintains a maintenance truck and ATV. Maintenance Supplies ($6,125) The BID purchases a wide variety of maintenance supplies for various programs. 192 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2022 Page 12 of 12 Downtown Business Improvement District FY2022 Assessment Budget Income BID Assessment 185,000$ BID Assessment--residual Contract Income 17,500$ Interest Income 100$ Mobile Vending Fees 2,000$ Flower Sponsorships 8,500$ Christmas Light Sponsorships 3,500$ Streetlamp Banners 10,000$ Total Income 226,600$ Expenses Management Fee 58,750$ Total Expenses 58,750$ Payroll Expenses Maintenance Staff 45,000$ Taxes 3,950$ Work Comp 2,700$ Maintenance Staff--Garage 13,000$ Taxes 975$ Work Comp 975$ Total Payroll Expenses 66,600$ Programs New Program 15,000$ Downtown Bozeman Association (DBA) Support 26,150$ Christmas Lights 2,000$ Christmas Light Spider Repair 1,500$ Christmas Lights Storage 1,400$ New Banners 3,000$ Flower Expenses 25,000$ Flower Water 250$ Tree Purchases 2,000$ Marketing 2,500$ Maintenance Supplies 3,500$ Garbage Bags 2,625$ Graffiti Supplies 1,125$ Graffiti Contracted Removal 4,500$ Mule Service & Fuel 1,500$ Truck Service & Fuel 2,200$ Vehicle Insurance 3,850$ Program Contingency 1,000$ Total Program Expenses 99,100$ Total BID Expenses 224,450$ NET ASSESSMENT INCOME 2,150$ 193 Memorandum REPORT TO:City Commission FROM:Ellie Staley, Executive Director of the Downtown Bozeman Partnership SUBJECT:Authorize the City Manager to Sign A Professional Services Agreement Between the City of Bozeman and the Downtown Bozeman Partnership for the Administration of the Downtown Urban Renewal District for Fiscal Year 2022 MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Agreement - Agency/Non-profit RECOMMENDATION:Authorize the City Manager to Sign the PSA with the Downtown Partnership. STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND:As allowed by statute (MCA 7-15-4232), the City annually contracts the Downtown Bozeman Partnership to administer the Downtown Urban Renewal District. UNRESOLVED ISSUES:None. ALTERNATIVES:As directed by the City Commission. FISCAL EFFECTS:As specified in its annual work plan and budget, the Downtown URD pays a fee to the Downtown Partnership to cover the administrative costs of managing the district and implementing the annual work plan. The FY2022 Downtown URD work plan and budget was unanimously approved by the board on May 18, 2021 and presented to the City Commission on June 15, 2021. Attachments: CC Memo for COB-DBP PSA FY22 URD.docx DBP-COB PSA for Management of URD District--FY2022.pdf Report compiled on: July 20, 2021 194 CITY COMMISSION MEMORANDUM TO:Mayor Andrus and City Commission FROM:Ellie Staley, Executive Director Downtown Bozeman Partnership SUBJECT:Professional Services Agreement between the City of Bozeman and the Downtown Bozeman Partnership for the administration of the Downtown Urban Renewal District for Fiscal Year 2022. MEETING DATE:TBD AGENDA ITEM TYPE:Consent RECOMMENDATION: Authorize the City Manager to Sign the PSA with the Downtown Partnership. BACKGROUND: As allowed by statute (MCA 7-15-4232), the City annually contracts the Downtown Bozeman Partnership to administer the Downtown Urban Renewal District. FISCAL EFFECTS:As specified in its annual work plan and budget, the Downtown URD pays a fee to the Downtown Partnership to cover the administrative costs of managing the district and implementing the annual work plan. The FY2022 Downtown URD work plan and budget was unanimously approved by the board on May 18, 2021 and presented to the City Commission on June 15, 2021. UNRESOLVED ISSUES:None. ATTACHMENTS:The following documentation is included as a single attachment: Professional Services Agreement FY2022 Downtown URD Work Plan and Budget Prepared by Ellie Staley. 195 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 1 of 16 Professional Services Agreement Regarding the Administration and Management of the Downtown Bozeman Urban Renewal District WHEREAS, the Downtown Urban Renewal District was created March 6, 1995 by Commission Resolution No. 3046; and WHEREAS, the Downtown Urban Renewal Plan was adopted on November 20, 1995 by Commission Ordinance No. 1409; and WHEREAS, the life of the Tax Increment Financing District established under the Urban Renewal Plan was extended on March 7, 2005 by Commission Ordinance No. 1628; and WHEREAS, the life of the Tax Increment Financing District established under the Urban Renewal Plan was extended on December 17, 2007 until the year 2032 with the sale of Tax Increment Urban Renewal Revenue Bonds by Commission Resolution No. 4073; and WHEREAS, the adopted Urban Renewal Plan stipulated that an Urban Renewal Agency would be created and referred to as the Downtown Bozeman Improvement District Board (the “Board”) pursuant to 7-15-4232 MCA and 7-15-4234 MCA; and 7-15-4232. Authorization to assign urban renewal powers to municipal departments or to create urban renewal agency. When a municipality has made the finding prescribed in 7-15-4210 and has elected to have the urban renewal project powers exercised as specified in 7-15-4233: (1) such urban renewal project powers may be assigned to a department or other officers of the municipality or to any existing public body corporate; 7-15-4234. Urban renewal agency to be administered by appointed board of commissioners. (1) If the urban renewal agency is authorized to transact business and exercise powers under this part, the mayor, by and with the advice and consent of the local governing body, shall appoint a board of commissioners of the urban renewal agency consisting of five commissioners... WHEREAS, the Downtown Board as the designated Urban Renewal Agency is authorized to employ the necessary staff to implement the Urban Renewal Plan pursuant to 7-15-4238 MCA; 196 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 2 of 16 7-15-4238. Employment of necessary staff. The urban renewal agency or department or officers exercising urban renewal project powers shall be supplied with the necessary technical experts and such other agents and employees, permanent and temporary, as are required. WHEREAS, the Board bylaws state “Should a private organization be responsible for program administration, such arrangements shall be made by contract with the City of Bozeman.”; NOW, THEREFORE, the Downtown Bozeman Partnership and City of Bozeman enter into this Professional Services Agreement defining the administration and management of the Downtown Bozeman Urban Renewal District. THIS AGREEMENT is made and entered into this ____ day of ________________ 2021 (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and the DOWNTOWN BOZEMAN PARTNERSHIP, LLC, a limited liability company, with a physical and mailing address of 222 East Main Street #302, Bozeman, MT, 59715, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit “A” and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the date of its execution and will terminate on the 30th day of June 2022. 3. Scope of Work: Contractor will provide administrative and management services to the Board pursuant to the URD FY2022 Work Plan and Budget outlined in the Scope of Services, Exhibit “A”. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services, Exhibit “A” as the “Downtown Partnership Management Fee”. Any alteration or deviation from the described services that involves additional costs above the Agreement amount 197 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 3 of 16 will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific 198 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 4 of 16 steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to 199 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 5 of 16 indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non- renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice 200 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 6 of 16 that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel 201 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 7 of 16 all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Anna Rosenberry (Assistant City Manager) or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. 202 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 8 of 16 b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Ellie Staley (DBP Executive Director) or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of 203 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 9 of 16 the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The 204 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 10 of 16 Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 205 206 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 12 of 16 Scope of Services: Exhibit “A” Downtown Urban Renewal District (URD) FY2022 Work Plan (July 1, 2021 to June 30, 2022) All budgeted investments over $15,000 are documented Structured Parking Informal, Site Plan, Bids $ 750,000 budgeted The URD will continue to invest in planning for additional structured parking downtown. This $750k would fund the informal (schematic) and site plan design work for a specific second parking garage. As noted below this is just a portion of the “soft costs” associated with constructing a new garage. Downtown Parking Garage $ 335,000 budgeted The URD will make the annual bond payment contribution for Bridger Park, the downtown parking garage. Downtown Utility Infrastructure Improvements $ 250,000 budgeted This funding will support utility infrastructure improvements such as repairs to poles, pipes, cables, wires, conduits, etc. The URD Board will be discussing further how to allocate funding to projects. Downtown Residential Incentive Program $ 200,000 budgeted The purpose of the Downtown Residential Incentive Grant Program is to encourage the creation of more attainable housing units downtown. The Program will reimburse a portion of housing- related impact fees for qualifying residential projects. Last year the program was revised to encourage the creation of new smaller studio and one-bedroom residential units as well as residential units that have long-term affordability controls. Downtown Partnership Management Fee $ 190,0000 budgeted The URD is a member of the Downtown Bozeman Partnership, LLC which serves as the incorporated management agency for all the downtown organizations (BID, DBA, URD). This management fee pays for a portion of the operating costs of the downtown office in addition to most of the payroll costs of the Executive Director and District Manager positions. North Rouse Streetscape Project $ 182,000 encumbered The URD has been working with the Montana Department of Transportation since 2018 to incorporate the elements of the downtown streetscape into the reconstruction of Rouse Avenue. The current scope includes purchasing the streetlamps ($85,000), final engineering for streetlamp installation ($17,000 remaining from FY21), and a separate contract to install the streetlamps ($80,000). Schematic Design (17.5%) = $306,250 306,250$ Design Development (25%) = $437,500 437,500$ 743,750$ Construction Documents (33%) = $577,500 577,500$ Bidding & Negotiation (2%) = $35,000 35,000$ Construction Administration (22.5%) = $393,750 393,750$ Total (100%) = $1,750,000 1,750,000$ Complete design, permitting and construction administration services for a second structured parking facility in Downtown Bozeman, including architectural, MEP, structural, civil, survey and geotechnical services. Permitting includes the City of Bozeman site plan application and building permit processes. 207 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 13 of 16 Downtown Plan Transportation Projects $ 25,000 budgeted $ 91,000 encumbered This funding of $25,000 is intended for the study of the transportation concepts in 2019 Downtown Improvement Plan not completed in Part 1 of a scope of work completed by Sanderson Stewart in FY21. In FY21, The URD board approved Part 1 of a scope of work prepared by Sanderson Stewart which will included: 3-lane Main Street configuration with diagonal parking options; bicycle facility improvements on Mendenhall and Babcock; possible new traffic signals on Mendenhall and Babcock; and pedestrian crosswalk improvements. MDT and COB provided comments to the initial work prepared by Sanderson Stewart. The URD Board will be reviewing this work and make a decision to move forward with Part 2 in FY22. Part 2 (encumbered funds) will include traffic data collection and analysis of the affected intersections and corridors for the extent of the improvements. The scope of work for Part 2 may need to be reconsidered based on the findings from Part 1 prior to the separate authorization to proceed. Part 2, as currently scoped, has a not-to-exceed cost of $90,590. DBIP: Alley Enhancement Project $19,000 encumbered(implementation) $ 50,000 budgeted (implementation) $ 45,000 budgeted (planning) The $19,000 of encumbered funds (from FY20) as well the $50,000 budgeted funds are to complete alley improvements in north alley between Tracy and Black—the parking garage alley—that includes a combination of public art, seasonal planters, pavement treatments, lighting, seating, and landscaping. The $45,000 is for planning improvements to a new section of alley (TBD) and planning for utility and stormwater management. Fiber Infrastructure Project $ 110,000 budgeted The URD continues to invest in upgrades to downtown’s open-source fiber broadband infrastructure and provide grants to defray the costs to connect downtown buildings/businesses to the fiber network. Downtown Infrastructure and Public Realm Plan $ 100,000 budgeted This URD funding will used to develop an infrastructure and public realm plan with the COB as recommended in the 2019 Downtown Improvement Plan. This plan will Establish a framework for making near term strategic infrastructure investments that incrementally build to the long term vision, align development and provide a stable path for private investment, while leveraging limited public resources, enhance Downtown’s identity and ensure that public realm improvements create a visually consistent and sustainable environment, coordinate with city-wide infrastructure plans and projects, and lay out potential state and federal funding. Downtown Improvement Plan Implementation $ 100,000 budgeted This funding is intended to be available for smaller investments in the implementation of the 2019 Downtown Improvement Plan objectives. Technical Assistance Grant Program $ 50,000 budgeted $ 45,000 encumbered This program supports current or potential developers, owners, and tenants with technical assistance during the preliminary phases of possible redevelopment projects in the district. This program facilitates navigating code requirements, preparing for the planning application and approval process, and evaluating historic preservation considerations. Downtown Design Guidelines $ 85,000 budgeted In FY21 the URD provided $38,750 to City Community Development Department to contract updating historic 208 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 14 of 16 inventories for downtown buildings. This was the first step of developing a set of downtown design guidelines per the 2019 Downtown Plan and 2019 Neighborhood Conservation Overlay District Report. DBIP: Bozeman Creek Project $ 30,000 budgeted (planning) $ 50,000 budgeted (implementation) The URD intends to continue planning for a variety of enhancements to Bozeman Creek as suggested in the 2019 Downtown Improvement Plan with $30,000 of funding. The $50,000 is for creek improvements that could include a combination of public art, education elements, culvert improvements, furniture (benches, picnic tables), stream restoration, and bank stabilization. North Willson Streetscape Project $ 75,000 budgeted This funding is to construct new streetscape (sidewalk, trees, and lamps) along North Willson adjacent to the South Willson public parking lot and connect to new streetscape along East Mendenhall adjacent to the Armory Hotel. Professional Services Term Contract $ 75,000 budgeted The intent of this funding is to allow the URD to nimbly respond to needs for professional services in response to unanticipated issues. The professional services will include but not be limited to engineering, architecture, urban planning, parking and fiber consulting. Alternative Transportation Project $ 75,000 budgeted This URD funding is to be invested in the planning, design, and implementation of alternative transportation infrastructure potentially including EV charging, car share, bike share, and multi-modal transportation systems as recommended in the 2019 Downtown Improvement Plan. Streetscape Element Purchases and Maintenance $ 55,000 budgeted The URD will continue to supplement the existing streetscape inventory by purchasing additional historic streetlamps, trash receptacles, pedestrian benches, tree guards and bike racks. Funding is also available for the ongoing maintenance of the streetlamps, Soroptomist Park, and the North Black Pocket Park. Streetscape Assistance Program $ 50,000 budgeted This URD program will provide property owners with partial reimbursement for the installation of streetlamps in accordance with the Downtown Streetscape Plan. The program is designed to support private investment, redevelopment of property and the improvement of public areas in downtown. Parklet $ 50,000 budgeted A parklet is a sidewalk extension into a parking lane that is used to create additional seating, greenspace and art opportunities. This is cost-effective tool to provide community space in the downtown core. This funding will be used to research, design and purchase a parklet for use in downtown. Life-Safety Grant Program $ 50,000 budgeted This URD program provides property owners with partial reimbursement for life-safety code compliance upgrades. The program is specific to the installation of dedicated fire lines connecting a building’s sprinkler system to the municipal water main. The program has a one-to-one match required of the property owner and a per-project dollar cap of $10,000. Downtown Bozeman Association (DBA) Event Stage $ 50,000 budgeted On March 10, 2020, the URD board approved a DBA request for $50,000 as matching funds to purchase a portable event stage. Because of a variety of factors, not the least being COVID, the DBA did not purchase a stage in 2020. Subsequently, it should be noted that the previously approved funding was not 209 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 15 of 16 in the FY2021 URD Budget. Streetscape Preliminary Engineering $ 50,000 budgeted This will provide preliminary streetscape engineering on North Willson, West Main, and updates to side streets as needed. Soroptomist Park Planning $ 50,000 budgeted In FY21, the URD partnered with MSU and the CATS Program to develop initial design ideas to transform Soroptomist Park. The next step is to hire a professional firm or team to further the design concepts for the park. Structured Parking Feasibility Analysis $ 35,000 budgeted This funding will provide further feasibility site analysis of potential locations for the construction of structured parking in the downtown district. City Economic Development Specialists $ 33,000 budgeted The URD is committed to partially fund City Economic Development Department Specialists FTE. These employees will work on a variety of tasks directly related to the downtown URD including parking and tax increment financing. Intersection Cable Anchor Repairs $ 30,000 budgeted The URD will continue to invest in the repair of the intersection cable and anchor system as they have in the past. The last engineering assessment was completed in 2017. The intersection cables hold the holiday decorations and over street banners. Wayfinding and Parking Signage Project $ 10,000 budgeted (planning) $ 15,000 budgeted (implementation) This URD funding will assist with developing and to broaden installation of downtown parking signage as recommended in the 2019 Downtown Improvement Plan. Code Amendments $ 20,000 budgeted This funding assists with code consulting on categories such as maximum height in the “core area”, code flexibility Downtown for new and existing buildings (departures, deviations, relaxations) as recommended in the 2019 Downtown Improvement Plan. Employee Paid Parking Permit System $ 20,000 budgeted This funding will be used for planning the potential to update parking on-street policies around pricing, time limits and permits to promote use of on-street parking for visitors and customers. Also to collaborate with business owners on employee policies and incentives for alternative transportation use or off-street parking use as recommended in the 2019 Downtown Improvement Plan. 210 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2022 Page 16 of 16 Downtown Urban Renewal District FY2022 Budget Category Approved Budget Income Starting Cash Balance 3,295,598 Income from TIF 335,000 COB Interlocal Share 1,456,000 Entitlement Share State of Montana 57,050 Interest Income 20,000 Other Income Total Income 5,163,648 Expenses Operations DBP Management Fee 190,000 Total Operations 190,000 Infrastructure ImprovementsStreet Furniture and Park Maintenance 25,000 Streetscape--new purchases 30,000 North Rouse Streetscape Project FY21 Encumbered- Streetlamps (26 qty)85,000 FY21 Encumbered- Phase 1 Construction: Conduit 17,000 FY21 Encumbered-Phase 2 Construction: Lamps 80,000 North Willson Streetscape Project 75,000 Streetscape Assistance Grant Program 50,000 Streetlamp Power Reconfiguration Project - Alley Improvements 50,000 FY20 Encumbered 19,000 DBIP: Bozeman Creek Improvements 50,000 DBIP: Wayfinding & Parking Singage 15,000 Library Pedestrian Safety Improvements - Life-Safety Grant Program 50,000 Fiber Infrastructure 100,000 Fiber-Broadband Infrastructure--Grants 10,000 Intersection Cable Anchor Repairs 30,000 DBA Event Stage 50,000 Parklet 50,000 Alternative Transportation Projects 75,000 Total Improvements 861,000 PlanningCity Economic Development Specialist 33,000 Technical Assistance Grants 50,000 FY20 & FY21 Encumbered Funds 45,000 Residential Incentive Program 200,000 Armory Hotel Incentive Encumbered Funds - DBIP: Transportation Planning 25,000 FY20 Encumbered Part One--Concepts Y21 Encumbered- Part Two--Data, Analysis, Cost Est 91,000 DBIP: Alley Planning 45,000 DBIP: Bozeman Creek Planning 30,000 DBIP: Soroptomist Park Planning 50,000 DBIP: Code Amendments 20,000 DBIP: Design Guidelines-Historic Inventories -DBIP: Design Guidelines 85,000 DBIP: Downtown Infrastruction & Public Realm Pla 100,000 DBIP: General Implementation 100,000 FY20 Encumbered Main Street Truck Study DBIP: Employee Paid Parking Permit System 20,000 DBIP: Wayfinding Plan & Parking Singage 10,000 Utility Infrastructure Improvements 250,000 SILD & Streetscape Engineering -Structured Parking Feasibility Analysis 35,000 Structured Parking Informal, Site Plan, Bids 750,000 South Wallace Asbestos Project - Professional Services Term Contract 75,000 Streetscape Preliminary Engineering 50,000 Total Planning 2,064,000 Parking Structure Garage Bond Payment 335,000 Total Parking Garage Payments 335,000 Total Expenses 3,450,000 Balance 1,713,648 211 Memorandum REPORT TO:City Commission FROM:Natalie Meyer, Sustainability Program Manager Jon Henderson, Director of Strategic Services Chuck Winn, Assistant City Manager SUBJECT:Authorize the City Manager to Sign a First Amendment to the Professional Services Agreement with Elkhorn Commissioning Group to Include Construction Commissioning for the Bozeman Public Safety Center MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a First Amendment to the Professional Services Agreement with Elkhorn Commissioning Group to include construction commissioning for the Bozeman Public Safety Center. STRATEGIC PLAN:6.3 Climate Action: Reduce community and municipal Greenhouse Gas (GHG) emissions, increase the supply of clean and renewable energy; foster related businesses. BACKGROUND:On October 14, 2019, the Bozeman City Commission approved a contract with Elkhorn Commissioning Group for commissioning services for the Bozeman Public Safety Center pre-construction design phase with the option to amend the contract to include construction phase commissioning. Elkhorn Commissioning Group has completed pre-construction phase design work for the Bozeman Public Safety Center. Based on final design, the City has negotiated a construction phase scope of work for commissioning the heating, ventilation, and air conditioning (HVAC), mechanical systems, lighting controls, plumbing systems, emergency power systems, and building envelope. Elkhorn Commissioning Group will provide a review of submittals, monitoring, and performance testing to help ensure function, longevity, and energy efficiency of the Public Safety Center. A full list of construction phase services provided by the commissioning agent is included in the attached agreement amendment under Exhibit 3. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the Commission. FISCAL EFFECTS:The cost of commissioning services has been anticipated since conception of the Bozeman Public Safety Center and monies have been included in the 212 overall construction budget. The contract under consideration by the City Commission is for a not to exceed total of $89,670 for the construction services specified on page 5 of Exhibit 3 in the attached Professional Services Agreement. Attachments: First Amendment to Professional Services Agreement for Commissioning Services for the Bozeman Public Safety Center_20210803.pdf Report compiled on: July 22, 2021 213 First Amendment to Professional Services Agreement for Commissioning Services for the Bozeman Public Safety Center FY 2018 – FY 2023 Page 1 of 2 FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR COMMISSIONING SERVICES FOR THE BOZEMAN PUBLIC SAFETY CENTER dated October 14, 2019 (the “Agreement”) is made and entered into this _____ day of ____________, 202__, by and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and Elkhorn Commissioning Group, Inc, hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree to amend the Agreement as follows: 1. Scope of services and rate schedule for construction and acceptance phase. Section III. B. of the Request for Proposals specifies that the scope of services for construction and acceptance will be negotiated following completion of the design phase. Section 1.6.3 of the Professional Services Agreement specifies that the parties shall negotiate and enumerate changes in services by signed, written addendum. The scope of services and rate schedule for the construction and acceptance phase outlined in “Exhibit 3. Scope of Work and Construction Phase” are hereby incorporated in and made part of this Agreement. 2. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 214 First Amendment to Professional Services Agreement for Commissioning Services for the Bozeman Public Safety Center FY 2018 – FY 2023 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA ELKHORN COMMISSIONING GROUP By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name : Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 215 KEVIN SMITH • kevin@elkhorncx.com • 406.403.6526 • LAGAN TODD • lagan@elkhorncx.com • 406.210.0655 ELKHORN COMMISSIONING GROUP • PO BOX 11826 • BOZEMAN, MT 59719 COMMISSIONING PROPOSAL Date: June 10, 2021 Project: Bozeman Public Safety Center Bozeman, MT Attn: Chuck Winn Assistant City Manager City of Bozeman Bozeman, MT 406-582-2307 Dear Chuck, Elkhorn Commissioning Group (ECxG) is pleased to provide this proposal for commissioning (Cx) services of the Bozeman Public Safety Center. We will provide all Cx services compliant with the Owner requirements, and according to commissioning best practices according to the Building Commissioning Association (BCxA), American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE), the International Energy Conservation Code (IECC, 2018), and other relevant standards and guidelines. Commissioning Requirements: Commissioning requirements include (see also Scope of Commissioning Services below): The CxA shall report results, findings and recommendations directly to the Owner and design team The CxA shall review contractor submittals applicable to systems being commissioned. The CxA shall assist in the development of a systems manual that provides future operating staff the information needed to understand and optimally operate the commissioned systems The CxA shall verify that the requirements for training operating personnel and building occupants are completed Exhibit 3 216 KEVIN SMITH • kevin@elkhorncx.com • 406.403.6526 • LAGAN TODD • lagan@elkhorncx.com • 406.210.0655 ELKHORN COMMISSIONING GROUP • PO BOX 11826 • BOZEMAN, MT 59719 The CxA shall review building operation within 10 months after substantial completion with O&M staff and occupants. Include a plan for resolution of outstanding commissioning-related issues. Scope of Work: The following systems will be commissioned: HVAC/Mechanical Systems and Equipment: Lighting Controls and Plumbing systems will be commissioned according to Owner and IECC 2018 requirements. Emergency Power Systems and Changeover Construction Phase: 1.Write the Cx plan (a list of systems to be commissioned will be developed after CxA selection) 2.Coordinate, facilities and lead Cx kick-off meeting to review and plan Cx requirements 3.Review CM/GC submittals and shop drawings for commissioned systems 4.Attend construction coordination meetings as appropriate 5.Coordinate completion of construction Cx checklists with CM/GC 6.Monitor and perform quality assurance checks of all test/adjust/balance work and recommend any rebalancing or corrective actions 7.Review all Requests for Information and Change Orders related to commissioned systems 8.Review all building management and controls systems documentation developed by the CM/GC 9.Coordinate and monitor all functional performance testing 10.Document all deficiencies, corrective action by CM/GC, and retesting performed 11.Assist with troubleshooting of any commissioned systems 12.Develop integrated systems coordination plans in conjunction with Owner’s facilities trades, design team, CM/GC, and subcontractors 13.Provide acceptance and summary report of all results and conditions 14.Summary report shall include all fully executed construction checklists, functional test forms, record of deficiencies and resolutions, CxA acceptance certifications, and recommendations 15.Review operations and maintenance manuals 16.Coordinate and provide systems and re-commissioning manual for ongoing Cx and upkeep of commissioned systems including schedules and frequencies 17.Coordinate and participate in all operations and maintenance staff training events involving commissioned systems and verify training has been completed 217 KEVIN SMITH • kevin@elkhorncx.com • 406.403.6526 • LAGAN TODD • lagan@elkhorncx.com • 406.210.0655 ELKHORN COMMISSIONING GROUP • PO BOX 11826 • BOZEMAN, MT 59719 18.During occupancy and prior to expiration of the warranty period, perform seasonal and/or deferred tests along with a post-occupancy and performance evaluation 19.End-of-warranty period testing, review, and report of commissioned building systems 20.Comply with (where/when applicable): a.ASHRAE Guideline 0-2013: The Commissioning Process and/or ASHRAE Guidelines 1.1-2007 and 1.5-2012; b.ASHRAE Standard 202-2013, The Commissioning Process for Buildings and Systems; c.ASTM E2813, Standard Practice for Building Enclosure Commissioning; d.ASTM E2947, Standard Guide for Building Enclosure Commissioning; e.ASTM E779, Standard Test Method for Determining Air Leakage Rate by Fan Pressurization; f.ASTM E1827, Standard Test Methods for Determining Airtightness of Buildings Using an Orifice Blower Door; Envelope Commissioning Scope of Work We recommend also considering engaging additional 3rd party inspectors to address specific quality control oversight that may overlap with or be tangential to this BECx scope and delivery as described in this proposal. For example, it may be in the best interest of the owner and contractor to employ a manufacturer-approved inspector for the membrane roofing system who will focus on QC of the installation procedures and warranty requirements, whereas the BECx scope and delivery will provide parallel quality control oversight focused on compliance to the design intent. This concept may apply also to QC of the installation of systems including the WRB/air barrier, fenestration, and glazed façade assemblies, etc. The following are descriptions of the construction phase BECx services we propose. 1.0) During Construction: Whole Building On-site Envelope Construction Reviews We will make periodic on-site reviews of the construction of the building envelope and at appropriate intervals we will submit commissioning field reports specific to our BECx reviews. Our focus will be on: Issues or concerns related to overall envelope construction including air, moisture/weather and thermal barriers. Envelope primary air barrier, and compliance to IECC 2012 C402.4.1 Air Barriers. 218 KEVIN SMITH • kevin@elkhorncx.com • 406.403.6526 • LAGAN TODD • lagan@elkhorncx.com • 406.210.0655 ELKHORN COMMISSIONING GROUP • PO BOX 11826 • BOZEMAN, MT 59719 We are budgeting six (6) such on-site reviews. In some cases, a single field report may encompass the findings of two or more on-site reviews, i.e. there will not necessarily be BECx field reports submitted after each on-site review. 2.0) Early-Construction Water Intrusion, Air Infiltration, and Air Barrier Adhesion Testing at In-Situ Mockup(s) We propose to lead the testing as outlined in this proposal, as well as the BECx Plan. In some cases, we are proposing different test methods than what is specifically identified in the specifications because we believe the proposed approach meets design intent and provides the best value. This proposal is based upon completing air leakage, water leakage and air barrier adhesion tests using in-situ mockups of window, wall, and fenestration assemblies as appropriate to facilitate real-world conditions. Number of tests will be determined by construction sequencing/scheduling, performing tests of similar assemblies early is critical to prove effectiveness of design/installation of details. Air Leakage Testing Qualitative air leakage testing according to ASTM E1186 AND Water Leakage Testing Pass/Fail water leakage testing according to AAMA 501.2 3.0) Mid- to Late-Construction Water Infiltration Pass/Fail Testing at Fenestrations, Storefronts and Curtain Walls to AAMA 501.2 with Simultaneous Diagnostic Qualitative Assessment of Air Barrier Performance according to ASTM E-779 Water Leakage Testing We are proposing water leakage testing of storefronts and curtain walls according to either or both ASTM E1105 and AAMA 501.2, depending on state of building at the time of the test. ASMT E1105 includes application of water to the fenestrations while there is a differential pressure induced between the interior and exterior sides of the wall. The ability to develop and maintain the differential pressure depends on construction of temporary enclosures, and the construction of such enclosures is impacted by or may impact the overall construction schedule. AAMA 501.2 is similar but does not require a pressure differential across the envelope. Water is applied to the exterior in a controlled fashion but without the pressure differential between inside and outside. The rate of water application and pass/fail criteria are different. We are proposing the option to conduct testing of storefronts and curtain walls according to AAMA 501.2 as a lower cost (per unit area), lower-impact testing method that is less dependent on coordination with the overall construction schedule. If the schedule allows, we may perform the 1105 test in place of the 501.2 test. 219 KEVIN SMITH • kevin@elkhorncx.com • 406.403.6526 • LAGAN TODD • lagan@elkhorncx.com • 406.210.0655 ELKHORN COMMISSIONING GROUP • PO BOX 11826 • BOZEMAN, MT 59719 We will test representative sections of the storefront and window assemblies for deficiencies or concerns regarding water barrier performance. Water leakage testing will be conducted according to AAMA 501.2. Air barrier performance will not be assessed specifically under the AAMA 501.2 method since there is no pressure differential. Air Leakage Testing Once the primary air barrier is installed and continuous, including enough windows, doors, etc to allow for test, we will perform an ASTM E-779 full building Blower Door Test. Pass/fail will be determined relative to the maximum allowable leakage per IECC 2018 of 0.4 CFM/ft2 of envelope area. 4.0) Final Report We will provide a concise final report that will compile the field reports and test results from the on-site reviews and tests. Contractors (and sub-contractors) Responsibilities: Provide access to the project site to the Commissioning Authority (CA) Attend coordination meetings Provide a lift and a lift operator for accessing any above-grade portions of the envelope that will be tested Review Cx Issues Logs and field reports provided by the CA, take appropriate actions to resolve issues that have been identified, and provide regular updates regarding issues statuses to the CA  Commissioning Authority Responsibilities, Activities and Deliverables: Direct and perform envelope testing with participation of and assistance by the GC or installing subcontractors Provide regular updates to the Cx Issues Log, test result documentation, field reports and Final Commissioning Report Price to provide additional MEP commissioning services as outlined in this proposal is: Sixty Five Thousand One Hundred Dollars: $65,100.00 Price to provide Envelope commissioning services as outlined in this proposal is: Twenty Four Thousand Five Hundred Seventy Dollars: $24,570.00 Proposed by: _________________________ Print Name: Kevin Smith; Elkhorn Commissioning Group kevin@elkhorncx.com Date: June 10, 2021 220 Memorandum REPORT TO:City Commission FROM:Taylor Lonsdale, Transportation Engineer Scott Shirley, Director of Public Works SUBJECT:Resolution 5325 Vacate and Abandon a Portion of the Road Easement Entirely within Railroad Right of Way Adjacent to Griffin Drive Described in Book 84, Page 365, Gallatin County, Montana MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Resolution 5325, Vacate and Abandon a Portion of the Road Easement Entirely within Railroad Right of Way Adjacent to Griffin Drive Described in Book 84, Page 365, Gallatin County, Montana and illustrated in Exhibit A. STRATEGIC PLAN:4.5 Housing and Transportation Choices: Vigorously encourage, through a wide variety of actions, the development of sustainable and lasting housing options for underserved individuals and families and improve mobility options that accommodate all travel modes. BACKGROUND:This is the final step in the abandonment of a portion of road easement entirely within railroad right of way adjacent to Griffin Drive. As outlined at the public hearing on the abandonment on July 27, 2021, staff has reviewed the proposal and has found that this easement can be vacated without detriment to the public interest. Additionally, abandonment benefits the City and the public interest by providing cost and time savings for the Griffin Drive and Manley Road Street and Stormwater Improvements project. Along with Resolution 5325, the attached Exhibit A will be filed with Gallatin County. UNRESOLVED ISSUES:None. ALTERNATIVES:None recommended. FISCAL EFFECTS:None. Attachments: Exhibit A_Abandonment.pdf Resolution 5325 .docx Report compiled on: July 22, 2021 221 222 223 Resolution 5325 COMMISSION RESOLUTION NO. 5325 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, DISCONTINUING, ABANDONING AND VACATINGPORTIONS OF THE ROAD EASEMENT DESCRIBED IN BOOK 84, PAGE 365, LOCATED IN THE SOUTHWEST ONE QUARTER SECTION OF SECTION 31, TOWNSHIP 1 SOUTH, RANGE 5 EAST, P.M.M. AND IN THE SOUTHEAST ONE QUARTER OF SECTION 36, TOWNSHIP 1 SOUTH, RANGE 5 EAST, P.M.M., CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA. WHEREAS, city engineering staff has determined it to be in the best interest of the City of Bozeman and the public to abandon a portion of said road easement entirely within the right of way of Burlington Northern Santa Fe Railroad adjacent to Griffin Drive, as shown in Exhibit "A" attached hereto; and WHEREAS, it appears to the City Commission that the subject road easement can be vacated without detriment to the public interests; and WHEREAS, it appears to the City Commission to be in the best interests of the City of Bozeman and the inhabitants therein that said easement be vacated, provided that said vacation does not affect the right of any public utility to continue to maintain its utilities and equipment in said right-of-ways. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana: Section 1 224 Resolution 5325 Abandonment and Vacation It is hereby declared by the City Commission of the City of Bozeman, Montana, to abandon and vacate the portions of the road easement described below: A portion of the easement described in Book 84, Page 365, Gallatin County, Montana, located in the southwest one-quarter of Section 31, Township 1 South, Range 6 East, P.M.M. and in the southeast one-quarter of Section 36, Township 1 South, Range 5 East, P.M.M., Gallatin County, Montana, more particularly described as follows : Beginning at the Section Corner common to Sections 1, 6, 31 & 36; Thence along the Section line between said Sections 6 & 31 N 88"10'53" E a distance of 926.74 feet to a point on the north boundary of the BNSF Railway Co. (operated by Montana Rail Link) right-of- way; Thence along said right-of-way boundary N 38"54'58" W a distance of 37.61 feet to the true Point of beginning; Thence N 88"10'53" W a distance of 203.10 feet to a calculated point; to said Sections 31 & 36; Thence N 38"54'58" W a distance of 50.22 feet to a calculated point; Thence N 02"14'18" W a distance of 271.29 feet to a calculated point on the north boundary of the BNSF Railway Co. right-of-way; Thence along the north boundary of the BNSF Railway Co. right-of-way S 38"54'58" E a distance of 100.45 feet to a calculated point; Thence S 02"14'18" E a distance of 170.82 feet to a calculated point; thence S 38"54'58" E a distance of 1132.15 feet to a calculated point; thence S 66"35'07" E a distance of 219.65 feet to the Point of Beginning, containing 2.146 acres, more or less. All as shown on the attached Exhibit A. The vacation does not affect the right of any public utility to continue to maintain existing utilities and equipment in the street right-of-ways. Section 2 Fee Title to Revert to BNSF Railway Co. The fee title to the land where the right-of-ways will be discontinued will be declared, upon adoption of this resolution discontinuing the street, to revert to the Burlington Northern Santa Fe Railway Co., for their benefit. Section 3 225 Resolution 5325 Filing with County Clerk and Recorder By adoption of this Resolution, and in compliance with Resolution 3628, the City Commission of the City of Bozeman hereby directs that a copy of this Resolution and Exhibit A depicting the changes approved herein be filed with the Gallatin County Clerk and Recorder. PASSED AND ADOPTED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 3rd day of August, 2021. ________________________________________ ATTEST: Cynthia L. Andrus, Mayor ____________________________________ Mike Maas City Clerk APPROVED AS TO FORM: ___________________________________ Greg Sullivan City Attorney 226 Memorandum REPORT TO:City Commission FROM:Tom Rogers, Senior Planner Marty Matsen, Community Development Director SUBJECT:Ordinance 2082 Provisional Adoption to Rezone 41.52 Acres in the Four Points Subdivision from R-4, Residential High Density District to R-5, Residential Mixed-Use High Density District, Application 21005 MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Provisionally adopt Ordinance 2082 to rezone 41.52 acres from R-4, Residential High Density District to R-5, Residential Mixed-Use High Density District. STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND:The applicant submitted application 21005 to rezone two existing lots in the Four Points subdivision from R-4 (Residential High Density) to R-5 (Residential Mixed-Use High Density). The subject property was annexed into the City in 2001 with Baxter Meadows Annexation and zoned R-4. The Four Points subdivision was approved in 2015 to create four (4) high density residential lots and a park, see application P14041. City staff and the Zoning Commission recommended approval of the application. On April 12, 2021. On May 4, 2021 the City Commission held a public hearing and voted unanimously to apply R-5 zoning designation to the subject property, subject to contingencies. All contingencies have been met by the applicant, including a map, and legal description. UNRESOLVED ISSUES:None ALTERNATIVES:Adoption of Ordinance 2082 as presented and recommended. Determine that the prior decision to zone was in error and do not adopt the ordinance. FISCAL EFFECTS:No unusual fiscal effects have been identified. No presently budgeted funds 227 will be changed by this Zone Map Amendment. Attachments: Ordinance 2082 Four Points ZMA No 21005.docx FourPoints2021ZMA_070221.pdf Report compiled on: July 14, 2021 228 Page 1 of 5 ORDINANCE NO. 2082 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING THE CITY OF BOZEMAN ZONING MAP TO REZONE 41.52 ACRES FROM R-4, RESIDENTIAL HIGH DENSITY DISTRICTTO R-5, RESIDENTIAL MIXED-USE HIGH DENSITY DISTRICT, KNOWN AS THE FOUR POINTS ZONEMAP AMENDMENT, APPLICATION 21005. WHEREAS, the City of Bozeman has adopted zoning regulations and a zoning map pursuant to Sections 76-2-301 and 76-2-302, M.C.A.; and WHEREAS, Section 76-2-305, M.C.A. allows local governments to amend zoning maps if a public hearing is held and official notice is provided; and WHEREAS, Section 76-2-307, M.C.A. states that the Zoning Commission must conduct a public hearing and submit a report to the City Commission for all zoning map amendment requests; and WHEREAS, the City of Bozeman Zoning Commission has been created by Section 2.05.2700, BMC as provided for in Section 76-2-307, M.C.A.; and WHEREAS, Chapter 38, Article 2 of the Bozeman Unified Development Code sets forth the procedures and review criteria for zoning map amendments; and WHEREAS, the proposed zone map amendment application to amend the City of Bozeman Zoning Map to rezone 41.52 acres from R-4 (Residential High Density District) to R-5 229 Ordinance 2082, Four Points Zone Map Amendment Page 2 of 5 (Residential Mixed-Use High Density District) has been properly submitted, reviewed, and advertised; and WHEREAS, after proper notice, the Bozeman Zoning Commission held a public hearing on April 12, 2021 to receive and review all written and oral testimony on the request for a zone map amendment; and WHEREAS, the Bozeman Zoning Commission recommended to the Bozeman City Commission that application No. 21005 the Four Points Zone Map Amendment, be approved as requested by the applicant; and WHEREAS, after proper notice, the City Commission held its public hearing on May 4, 2021, to receive and review all written and oral testimony on the request for the zone map amendment; and WHEREAS, the City Commission has reviewed and considered the zone map amendment criteria established in Section 76-2-304, M.C.A., and found that the proposed zone map amendment would be in compliance with the criteria. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That the zoning district designation of the following-described property is hereby designated as R-5, Residential Mixed-Use High Density District: An area of land comprised described as follows: All those certain tracts of land being Lots 4 and 5 of Four Points Minor Subdivision 475 and the adjoining City Street rights-of-way located in the Southeast One- Quarter of Section 34, Township 1 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana, being more fully bounded and described as follows: 230 Ordinance 2082, Four Points Zone Map Amendment Page 3 of 5 Beginning at the Northeast corner of the herein described area at the quarter corner common to Sections 34 and 35, Township 1 South, Range 5 East, P.M.M., thence along the West line of the southwest one-quarter of said Section 35 South 00°14'42" West, a distance of 897.16 feet to the centerline of Kimberwicke Street; thence along said centerline the two (2) following courses; 1) South 89°41'30" West, a distance of 765.77 feet; 2) South 89°42'15" West, a distance of 671.96 feet to the west right-of-way line of Vaquero Parkway; thence along said right-of-way along a curve turning to the left with an arc length of 46.17', with a radius of 270.00', with a chord bearing of North 12°55'15" West, with a chord length of 46.11', with a delta angle of 09°47'52" to a point on the South line of Lot 4 of Minor Subdivision 475 thence along the south and west lines of said Lot 4, respectively, the six (6) following courses; 1.) South 89°41'02" West, a distance of 213.12 feet; 2) South 48°21'31" West, a distance of 90.16 feet; 3) North 21°06'50" East, a distance of 50.25 feet; 4) North 02°06'15" West, a distance of 185.02 feet; 5) North 49°31'26" West, a distance of 90.84 feet; 6) North 16°37'51" East, a distance of 107.93 feet to a point on the south right-of-way line of Blondie Street; thence North 00°00'00" West, a distance of 30.00 feet to the centerline of Blondie Street; thence along said centerline the five (5) following courses; 1) North 90°00'00" West, a distance of 161.92 feet; 2) along a curve turning to the right with an arc length of 63.58', with a radius of 150.00', with a chord bearing of North 77°51'25" West, with a chord length of 63.11', with a delta angle of 24°17'11"; 3) North 65°42'49" West, a distance of 81.62 feet; 4) along a curve turning to the left with an arc length of 62.95', with a radius of 148.50', with a chord bearing of North 77°51'25" West, with a chord length of 62.48', with a delta angle of 24°17'11"; 5) North 90°00'00" West, a distance of 174.81 feet to the centerline of Milkhouse Avenue; thence along said centerline North 00°00'00" East, a distance of 431.20 feet to the centerline of Cattail Street; thence along said centerline North 89°51'42" East, a distance of 2293.16 feet to the POINT OF BEGINNING consisting 1,804,222 sf (41,42 acres). Containing in area 41.52 acres, including rights-of-way. Subject to existing easements. All as depicted on the FOUR POINTS Zone Map. Section 2 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances 231 Ordinance 2082, Four Points Zone Map Amendment Page 4 of 5 of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 3 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 4 Severability. That should any sentence, paragraph, subdivision, clause, phrase, or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal, or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 5 Codification. This Ordinance shall not be codified but shall be kept by the City Clerk and entered into a disposition list in numerical order with all other ordinances of the City and shall be organized in a category entitled “Zone Map Amendments.” Section 6 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the ____ day of ____________, 2021. 232 Ordinance 2082, Four Points Zone Map Amendment Page 5 of 5 _________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _________________________________ MIKE MAAS City Clerk FINALLY PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ____ day of____________________, 2021. The effective date of this ordinance is _______________, 2021. _________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 233 234 Memorandum REPORT TO:City Commission FROM:Bernie Massey, Assistant Treasurer Laurae Clark, Treasurer Kristin Donald, Finance Director SUBJECT:Resolution 5268 Establishing Tree Maintenance District Assessments for FY2022 MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Commission Resolution No. 5268 / establishing a Tree Maintenance District Assessments for FY2022, making the assessment rate $0.003692 per assessable square foot. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:The City Manager’s Recommended Budget includes a 2% increase in Tree Maintenance Assessments for the current fiscal year. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The Tree Maintenance District Assessment rate will increase by 2% over last year’s rate, resulting in the following: Total Tree Maintenance Assessments Collected, est. $826,628.48 Total Increased Dollars (2%) to Tree Maintenance District Fund, est. $16,208.40 Annual Assessment, Average Residential Lot (7,500 sq ft) $27.69 Annual Increase (2%), Average Residential Lot (7,500 sq ft) $0.55 Annual Assessment, Maximum Residential Lot (15,000 sq ft) $55.38 Annual Increase (2%), Maximum Residential Lot (15,000 sq ft) $1.10 235 Attachments: Resolution 5268 Tree Mtc Assessments FY22.docx Report compiled on: July 21, 2021 236 Page 1 of 5 RESOLUTION NO. 5268 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, LEVYING AND ASSESSING A SPECIAL ASSESSMENT FOR FISCAL YEAR 2022 UPON ALL REAL PROPERTY IN THE CITY OF BOZEMAN, COUNTY OF GALLATIN, STATE OF MONTANA, TO DEFRAY THE COST AND EXPENSE INCURRED IN THE CITY-WIDE TREE MAINTENANCE DISTRICT IN THE CITY OF BOZEMAN AND TO EXTEND THE BOUNDARIES OF SAID DISTRICT TO ENCOMPASS ANNEXED PROPERTIES. WHEREAS, the City Commission of the City of Bozeman did on the 16th day of July 1990, following notice and public hearing, regularly pass Commission Resolution No. 2804 entitled: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, CREATING A CITY-WIDE MAINTENANCE DISTRICT FOR THE PURPOSE OF PLANTING AND MAINTAINING TREES IN ALL PUBLIC PLACES, RIGHTS-OF-WAYS AND PARKS. Which Commission Resolution No. 2804 provides the basis and method of assessing the cost against property herein assessed; and WHEREAS, Commission Resolution No. 2804 further provides that said special assessments shall be made, levied, and collected in the same manner as are other special assessments and levies of the City of Bozeman; and 237 Resolution No. 5268, Tree Maintenance Assessments, FY21 Page 2 of 5 WHEREAS, Section 7-12-4179, Montana Code Annotated, allows the district boundaries to be changed by resolution; and WHEREAS, the district boundaries are the city corporate limits, to include all annexed property as of the date of this resolution, excluding Story Hills; and WHEREAS, to defray the costs of tree maintenance for the coming assessment year, the Commission must now establish an assessment to be levied for said services. NOW THEREFORE, pursuant to the provisions of said Commission Resolution No. 2804 and the laws of the State of Montana, BE IT RESOLVED AND IT IS HEREBY ORDERED BY THE COMMISSION OF THE CITY OF BOZEMAN, STATE OF MONTANA: Section 1 To defray the estimated cost and expense of planting and maintaining trees in all public places, rights-of-way and parks located within the maintenance district, which is hereby extended to include the city’s corporate limits existing as of the date of this resolution, excluding Story Hills, for Fiscal Year 2022, there is hereby levied and assessed against the assessable area of the several lots, pieces and parcels of land benefited by the maintenance district within the City of Bozeman as set forth in Schedule A, attached hereto and by this reference made a part hereof, which describes each lot or parcel of land with the name of the owner and/or owners, if known, and the amount assessed against the same. The said sums shall be paid and the collection thereof be made in the manner and in accordance with Commission Resolution No. 2804 of the City of Bozeman, Montana, and the laws of the State of Montana governing the collection of maintenance district assessments. Failure to pay such assessment when the same shall become due and payable shall make such persons and such lots and parcels of land liable to the penalties provided by law relative to delinquent taxes and assessments. The November assessments shall become delinquent at 5:01 238 Resolution No. 5268, Tree Maintenance Assessments, FY21 Page 3 of 5 p.m. on November 30, 2021, and the May assessments shall become delinquent at 5:01 p.m. on May 31, 2022. Section 2 The assessment basis and method of assessing the costs of themaintenance district against property herein assessed shall be as specified in Resolution No. 2804, which is hereby incorporated by this reference and made a part of this Resolution. Section 3 The per-square-foot assessment rate in said maintenance district shall be 0.003692, per square foot of actual lot area, with a limit on the maximum square footage assessed for zones listed below. For non-conforming residences located in business and manufacturingzoning districts without any business or manufacturing use attached, there shall be a maximum of 15,000 square feet assessed. The minimum annual assessment will be $3.50. Zoning Maximum assessment square footage (Cap) R-1 15,000 sq ft R-2 15,000 sq ft R-3 15,000 sq ft R-4 15,000 sq ft R-5 15,000 sq ft RMH 8,250 sq ft/unit RS 15,000 sq ft RO No Cap on developed parcels. Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) PLI (including MSU, Schools, Govt, Hospital, & Public Owned property) 25% of total sq ft REMU No Cap on developed parcels 239 Resolution No. 5268, Tree Maintenance Assessments, FY21 Page 4 of 5 Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) All Business Zones No Cap on developed parcels Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) All Manufacturing Zones No Cap on developed parcels Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) Section 4 This assessment shall be levied for the fiscal year of July 1, 2021 through June 30, 2022, and be billed in October 2021 as are all other special assessments. Any condominium and/or subdivision of land recorded on or before September 30, 2021 is subject to assessment for Fiscal Year 2022. Section 5 The regular session of the Commission of the City of Bozeman, Montana to be held at City Hall, 121 N Rouse Ave, Bozeman, Montana, on the 3rd day of August 2021 at 6:00 p.m., and the same is hereby designated as the time and place at which objections to the final adoption of the Resolution will be heard by said Commission. Section 6 The City Clerk of the City of Bozeman, did publish in the Bozeman Daily Chronicle a Notice signed by the City Clerk, stating that a Resolution levying and assessing a special assessment to defray the cost and expense of planting and maintaining trees in all public places, rights-of-way and parks located within the City’s corporate limits for the Fiscal Year 2022, against the property on which such service was rendered, is on file in the office of the City Clerk and subject to 240 Resolution No. 5268, Tree Maintenance Assessments, FY21 Page 5 of 5 inspection. Said notice states the time and place at which objections will be heard by the Commission to the final adoption of the Resolution. The final publication of said Notice was published at least five (5) days before the date set by the Commission for hearing objections and final adoption of this Resolution. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana at a regular session thereof held on the 3rd day of August 2021. ____________________________ CYNTHIA ANDRUS Mayor ATTEST: _________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ____________________________________ GREG SULLIVAN City Attorney 241 Memorandum REPORT TO:City Commission FROM:Bernie Massey, Assistant Treasurer Laurae Clark, Treasurer Kristin Donald, Finance Director SUBJECT:Resolution 5269 Establishing a Six Percent Change to Arterial and Collector Street Maintenance District Assessments for FY 2022 MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Commission Resolution No. 5269/Establishing a six percent change in Arterial and Collector Street Maintenance Assessments for FY 2022, making the assessment rate $0.006997 per assessable square foot. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:The City Manager’s Budget includes a 6% change in Arterial and Collector Street Maintenance Assessments UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The Arterial and Collector Street Maintenance District Assessment rate will change over last year’s rate, resulting in the following: Total Arterial and Collector Street Maintenance Assessments Collected, est. $1,496,634.83 Total Increased Dollars (6%) to Street Maintenance District Fund, est. $72,561.05 Assessment, Average Residential Lot (7,500 sq ft) $52.48 Annual Increase (6%), Average Residential Lot (7,500 sq ft) $2.97 Annual Assessment, Maximum Residential Lot (15,000 sq ft) $104.96 Annual Increase (6%), Maximum Residential Lot (15,000 sq ft) $5.94 242 Attachments: Resolution 5269 Arterial-CollectorStreet Mtc Assessments FY22.docx Report compiled on: July 21, 2021 243 Page 1 of 5 RESOLUTION NO. 5269 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, LEVYING AND ASSESSING A SPECIAL ASSESSMENT FOR FISCAL YEAR 2022 UPON ALL REAL PROPERTY IN THE CITY OF BOZEMAN, COUNTY OF GALLATIN, STATE OF MONTANA, TO DEFRAY THE COST AND EXPENSE INCURRED IN THE CITY-WIDE ARTERIAL AND COLLECTOR STREET MAINTENANCE DISTRICT IN THE CITY OF BOZEMAN AND TO EXTEND THE BOUNDARIES OF SAID DISTRICT TO ENCOMPASS ANNEXED PROPERTIES. WHEREAS, the City Commission of the City of Bozeman did on the 31st day of August, 2015, following notice and public hearing regularly pass Commission Resolution No. 4640 entitled: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, CREATING THE ARTERIAL AND COLLECTOR STREET SPECIAL DISTRICT FOR THE PURPOSE OF FUNDING THE CONSTRUCTION, IMPROVEMENTS, AND MAINTENANCE OF TRANSPORTATION FACILITIES RELATED TO ARTERIALS AND COLLECTOR STREETS. Which Commission Resolution No. 4640 provides the basis and method of assessing the cost against property herein assessed; and WHEREAS,Commission Resolution No. 4640 further provides that said special assessments shall be made, levied, and collected in the same manner as are other special assessments and levies of the City of Bozeman; and 244 Resolution 5269, Levying and Assessing Arterial and Collector Maintenance District Page 2 of 5 WHEREAS, in accordance with Commission Resolution No. 4640, the district boundaries are the city corporate limits as amended from time to time by annexation; and WHEREAS, to defray the costs of arterial and collector street maintenance for the coming assessment year, the Commission must now establish an assessment to be levied for said services. NOW, THEREFORE, pursuant to the provisions of said Commission Resolution No. 4640 and the laws of the State of Montana, BE IT RESOLVED AND IT IS HEREBY ORDERED BY THE COMMISSION OF THE CITY OF BOZEMAN, STATE OF MONTANA: Section 1 To defray the cost and expense of the maintenance of arterial and collector streets located within the district, which is hereby extended to include the city’s corporate limits including all annexed properties as of the date of this Resolution, for fiscal year 2022 the City of Bozeman hereby levies and assesses upon all property located within the district the respective amounts listed on Schedule A, attached hereto and by this reference made a part of this Resolution. The assessment amounts set forth on Schedule A shall be paid and collected in accordance with Commission Resolution No. 4640 of the City of Bozeman, Montana, and the laws of the State of Montana governing the collection of special district assessments. Failure to pay such assessment when due and payable shall make such persons and such lots and parcels of land liable to the penalties provided by law relative to delinquent taxes and assessments. The November assessments shall become delinquent at 5:01 p.m. on November 30, 2021, and the May assessments shall become delinquent at 5:01 p.m. on May 31, 2022. Section 2 245 Resolution 5269, Levying and Assessing Arterial and Collector Maintenance District Page 3 of 5 The assessment basis and method of assessing the costs of the district against property herein assessed shall be as specified in Resolution No. 4640, which is hereby incorporated by this reference and made a part of this Resolution. Section 3 That the per-square-foot assessment rate in saiddistrict shall be$0.006997per square footof actual lot area, with a limit on the maximum square footage assessed for zones as listed below. For non-conforming residences located in business and manufacturingzoning districts without any business or manufacturing use attached, there shall be a maximum of 15,000 square feet assessed. Zoning Maximum assessment square footage (Cap) R-1 15,000 sq ft R-2 15,000 sq ft R-3 15,000 sq ft R-4 15,000 sq ft R-5 15,000 sq ft RMH 8,250 sq ft/unit RS 15,000 sq ft RO No Cap on developed parcels. Cap of 15,000 sq ft on undeveloped (parcels that have no structures and have not received subdivision review.) PLI (including MSU, Schools, Govt, Hospital, & Public Owned property) 25% of total sq ft REMU No Cap on developed parcels Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) All Business Zones No Cap on developed parcels Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) 246 Resolution 5269, Levying and Assessing Arterial and Collector Maintenance District Page 4 of 5 All Manufacturing Zones No Cap on developed parcels Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) Section 4 This assessment shall be levied for the fiscal year of July 1, 2021 through June 30, 2022, and be billed in October 2021 as are all other special assessments. Any condominium and/or subdivision of land recorded on or before September 30, 2021 is subject to assessment for fiscal year 2022. Section 5 The regular session of the Commission of the City of Bozeman, Montana to be held at City Hall, 121 N. Rouse Ave, Bozeman, Montana, on the 3rd day of August, 2021 at 6:00 p.m., and the same is hereby designated as the time and place at which objections to the final adoption of the Resolution will be heard by said Commission. Section 6 The City Clerk of the City of Bozeman, did publish in the Bozeman Daily Chronicle a Notice signed by the City Clerk, stating that a Resolution levying and assessing a special assessment to defray the cost and expense of maintenance of all arterial and collector streets located within the City’s corporate limits for the fiscal year 2022, against the property on which such service was rendered, is on file in the office of the City Clerk and subject to inspection. Said notice states the time and place at which objections will be heard by the Commission to the final adoption of the Resolution. Said Notice waspublished at least five (5) days before the date set by the Commission for hearing objections and final adoption of this Resolution. 247 Resolution 5269, Levying and Assessing Arterial and Collector Maintenance District Page 5 of 5 PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana at a regular session thereof held on the 3rd day of August, 2021. ____________________________ CYNTHIA ANDRUS Mayor ATTEST: ____________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ____________________________________ GREG SULLIVAN City Attorney 248 Memorandum REPORT TO:City Commission FROM:Bernie Massey, Assistant Treasurer Laurae Clark, Treasurer Kristin Donald, Finance Director SUBJECT:Resolution 5270 Establishing a Six Percent Increase to Street Maintenance District Assessments for FY 2022 MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Commission Resolution No. 5270/establishing a 6% increase in Street Maintenance District Assessments for FY 2022, making the assessment rate $0.033113 per assessable square foot. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:The City Manager’s Budget includes a 6% increase in Street Maintenance Assessments. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The Street Maintenance District Assessment rate will increase 6% over last year’s rate, resulting in the following: Total Street Maintenance Assessments Collected, est. $7,400,017.66 Total Increased Dollars (6%) to Street Maintenance District Fund, est. $418,868.92 Annual Assessment, Average Residential Lot (7,500 sq ft) $248.35 Annual Increase (6%), Average Residential Lot (7,500 sq ft) $14.06 Annual Assessment, Maximum Residential Lot (15,000 sq ft) $496.70 Annual Increase (6%), Maximum Residential Lot (15,000 sq ft) $28.13 249 Attachments: Resolution 5270 Street Mtc Assessments FY22.docx Report compiled on: July 21, 2021 250 Page 1 of 5 RESOLUTION NO. 5270 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, LEVYING AND ASSESSING A SPECIAL ASSESSMENT FOR FISCAL YEAR 2022 UPON ALL REAL PROPERTY IN THE CITY OF BOZEMAN, COUNTY OF GALLATIN, STATE OF MONTANA, TO DEFRAY THE COST AND EXPENSE INCURRED IN THE CITY-WIDE STREET MAINTENANCE DISTRICT IN THE CITY OF BOZEMAN AND TO EXTEND THE BOUNDARIES OF SAID DISTRICT TO ENCOMPASS ANNEXED PROPERTIES. WHEREAS, the City Commission of the City of Bozeman did on the 16th day of July 1990, following notice and public hearing, regularly pass Commission Resolution No. 2803 entitled: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, CREATING A CITY-WIDE MAINTENANCE DISTRICT FOR ALL STREETS, ALLEYS AND PUBLIC PLACES LOCATED WITHIN THE CITY’S CORPORATE LIMITS AND REPEALING COMMISSION RESOLUTION NOS. 1650, CREATING SPRINKLING DISTRICT NO 5; 1651, CREATING SPRINKLING DISTRICT NO 6; 1652 CREATING SPRINKLING DISTRICT NO 7; 1653, CREATING SPRINKLING DISTRICT NO 8; AND 1654, CREATING SPRINKLING DISTRICT NO 9. Which Commission Resolution No. 2803 provides the basis and method of assessing the cost against property herein assessed; and 251 Resolution 5270, Levying Assessment for Street Maintenance District for FY20 Page 2 of 5 WHEREAS,Commission Resolution No. 2803 further provides that said special assessments shall be made, levied, and collected in the same manner as are other special assessments and levies of the City of Bozeman; and WHEREAS, Section 7-12-4403, Montana Code Annotated, allows the district boundaries to be changed by resolution; and WHEREAS, the district boundaries are the city corporate limits, to include all annexed property as of the date of this resolution, excluding Story Hills; and WHEREAS, to defray the costs of street maintenance for the coming assessment year, the Commission must now establish an assessment to be levied for said services. NOW, THEREFORE, pursuant to the provisions of said Commission Resolution No. 2803 and the laws of the State of Montana, BE IT RESOLVED AND IT IS HEREBY ORDERED BY THE COMMISSION OF THE CITY OF BOZEMAN, STATE OF MONTANA: Section 1 To defray the estimated cost and expense of the maintenance of streets, alleys and public places located within the maintenance district, which is hereby extended to include the city’s corporate limits existing as of the date of this resolution, excluding Story Hills, for Fiscal Year 2022 there is hereby levied and assessed against the assessable area of the several lots, pieces and parcels of land benefited by the maintenance district within the City of Bozeman as set forth in Schedule A, attached hereto and by this reference made a part hereof, which describes each lot or parcel of land with the name of the owner and/or owners, if known, and the amount assessed against the same. The said sums shall be paid and the collection thereof be made in the manner and in accordance with Commission Resolution No. 2803 of the City of Bozeman, Montana, and the laws of the State of Montana governing the collection of maintenance district assessments.Failure to pay such 252 Resolution 5270, Levying Assessment for Street Maintenance District for FY20 Page 3 of 5 assessment when the same shall become due and payable shall make such persons and such lots and parcels of land liable to the penalties provided by law relative to delinquent taxes and assessments. The November assessments shall become delinquent at 5:01 p.m. on November 30, 2021, and the May assessments shall become delinquent at 5:01 p.m. on May 31, 2022. Section 2 The assessment basis and method of assessing thecosts of the maintenance district against property herein assessed shall be as specified in Resolution No. 2803, which is hereby incorporated by this reference and made a part of this Resolution. Section 3 The per-square-foot assessment rate in said maintenance district shall be $0.033113 per square foot of actual lot area, with a limit on the maximum square footage assessed for zones as listed below. For non-conforming residences located in business and manufacturingzoning districts without any business or manufacturing use attached, there shall be a maximum of 15,000 square feet assessed. The minimum annual assessment will be $3.50. Zoning Maximum assessment square footage (Cap) R-1 15,000 sq ft R-2 15,000 sq ft R-3 15,000 sq ft R-4 15,000 sq ft R-5 15,000 sq ft RMH 8,250 sq ft/unit RS 15,000 sq ft RO No Cap on developed parcels. Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) PLI (including MSU, Schools, Govt, 25% of total sq ft 253 Resolution 5270, Levying Assessment for Street Maintenance District for FY20 Page 4 of 5 Hospital, & Public Owned property) REMU No Cap on developed parcels Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) All Business Zones No Cap on developed parcels Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) All Manufacturing Zones No Cap on developed parcels Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) Section 4 This assessment shall be levied for the fiscal year of July 1, 2021 through June 30, 2022, and be billed in October 2021 as are all other special assessments. Any condominium and/or subdivision of land recorded on or before September 30, 2021 is subject to assessment for Fiscal Year 2022. Section 5 The regular session of the Commission of the City of Bozeman, Montana to be held at City Hall, 121 N. Rouse Ave, Bozeman, Montana, on the 3rd day of August, 2021 at 6:00 p.m., and the same is hereby designated as the time and place at which objections to the final adoption of the Resolution will be heard by said Commission. Section 6 The City Clerk of the City of Bozeman, did publish in the Bozeman Daily Chronicle a Notice signed by the City Clerk, stating that a Resolution levying and assessing a special assessment to defray the cost and expense of maintenance of all streets, alleys, and public places located within 254 Resolution 5270, Levying Assessment for Street Maintenance District for FY20 Page 5 of 5 the City’s corporate limits for the Fiscal Year 2022, against the property on which such service was rendered, is on file in the office of the City Clerk and subject to inspection. Said notice states the time and place at which objections will be heard by the Commission to the final adoption of the Resolution. The final publication of said Notice was published at least five (5) days before the date set by the Commission for hearing objections and final adoption of this Resolution. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana at a regular session thereof held on the 3rd day of August, 2021. _______________________________ CYNTHIA ANDRUS Mayor ATTEST: ____________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ____________________________________ GREG SULLIVAN City Attorney 255 Memorandum REPORT TO:City Commission FROM:Bernie Massey, Assistant Treasurer Laurae Clark, Treasurer Kristin Donald, Finance Director SUBJECT:Resolution 5271 Establishing a 33 Percent Change to Parks and Trails Maintenance District Assessments for FY 2022 MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Resolution No. 5271 – Establishing a 33% change in Parks and Trails Maintenance District Assessments for FY 2022, making the assessment rate $0.02261 per assessable square foot. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:The City Manager’s Budget includes a 33% change in Parks and Trails Maintenance District Assessments. This is the second year of the five-year phase in plan for this assessment. On May 5, 2020 the Citizens of Bozeman voted to approve the creation of a Parks & Trails District. The plan for this district have been in the works for years and developed first with consultants and furthered in the most recent Capital Improvement Plan and internal staffing plan. A citywide park and trail district is an effort to solve three major issues: Deferred Maintenance: The cost of deferred maintenance in our parks and trails is currently ~$6.8 million. This includes assets that need to be repaired or replaced because they are beyond their useful life. Operations and Maintenance: Our current level of service for park and trail maintenance is reactionary in nature. The District will provide a funding source for current city parks and trails, new park projects coming on-line soon (Story Mill Park, Sports Park, Path to the M, etc.) and 235 acres of neighborhood parks and trails throughout the city that property owners associations are currently maintaining. The Commission determined a five- year phase in plan of s silver level of services across all parks. Equity: The district eliminates the need for homeowner associations (HOAs) to maintain city parks and trails in their subdivision through HOA fees. These city property owners who currently pay both general taxes and HOA fees for park and trail maintenance will no longer be paying a higher share of the 256 system costs. All city property owners will pay an annual assessment for park and trail maintenance. The first steps will be taking on the HOA parks and maintaining them at our current level of service. As we move into years two-five we will address deferred maintenance and under the five year ramp up it will take us a little over ten years to address our current back log. In addition, over the next five years we will be increasing the level service and will hope to achieve silver level of service by year 5 for all City owned parks. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the Commission FISCAL EFFECTS:The Parks & Trails District Assessment rate will result in the following: Total Parks and Trails Assessments Collected, est. $4,836,383.47 Total Increased Dollars (33%) to the Parks and Trails District Fund, est. $1,200,004.92 Assessment, Average Residential Lot (7,500 sq ft) $169.58 Annual Increase (33%), Average Residential Lot (7,500 sq ft) $42.08 Annual Assessment, Maximum Residential Lot (15,000 sq ft) $339.15 Annual Increase (33%), Maximum Residential Lot (15,000 sq ft) $84.15 Attachments: Resolution 5271 Parks Trails FY22 Assessment.docx Report compiled on: July 21, 2021 257 Page 1 of 5 RESOLUTION NO. 5271 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, LEVYING AND ASSESSING A SPECIAL ASSESSMENT FOR FISCAL YEAR 2022 UPON ALL REAL PROPERTY IN THE CITY OF BOZEMAN, COUNTY OF GALLATIN, STATE OF MONTANA, TO DEFRAY THE COST AND EXPENSE INCURRED IN THE CITY-WIDE PARKS AND TRAILS DISTRICT IN THE CITY OF BOZEMAN AND TO EXTEND THE BOUNDARIES OF SAID DISTRICT TO ENCOMPASS ANNEXED PROPERTIES. WHEREAS,on May 5, 2021, the voter of the City of Bozeman approved the creation of a Parks and Trails District (the “District”); and WHEREAS, the City Commission of the City of Bozeman did on the 1st day of June, 2021, following notice and public hearing pass Commission Resolution No. 5180 entitled: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, ORDERING THE CREATION OF A PARKS AND TRAILS SPECIAL DISTRICT WITHIN THE INCORPORATED LIMITS OF THE CITY OF BOZEMAN, MONTANA PURSUANT TO THE RESULTS OF THE MAY 5, 2021 ELECTION ; and WHEREAS, the City Commission of the City of Bozeman did on the 2nd day of December, 2019, following notice and public hearing regularly pass Commission Resolution No. 5053, a Resolution: (i) ordering a referendum on the creation of the District; (ii) providing the basis and method of assessing the cost against property herein assessed; and (iii) stating the City Commission will, as part of its regular budget process, estimating the total costs of the District for the following fiscal year; and WHEREAS, pursuant to Resolution 5170, the City Commission adopted its annual budget for fiscal year 2022 establishing the fiscal year 2022 budget for the District; and 258 Resolution 5271, Levying and Assessing Parks and Trails District Page 2 of 5 WHEREAS, in accordance with Commission Resolution No. 5053, the District boundaries are the corporate limits of the City as amended from time to time by annexation; and WHEREAS, to defray the costs of the District for the coming assessment year (fiscal year 2022), the Commission must now establish an assessment to be levied for to defray the costs of the District. NOW, THEREFORE, pursuant to the provisions of said Commission Resolution No. 5053 and the laws of the State of Montana, BE IT RESOLVED AND IT IS HEREBY ORDERED BY THE COMMISSION OF THE CITY OF BOZEMAN, STATE OF MONTANA: Section 1 To defray the cost and expense of District, which is hereby extended to include the City’s corporate limits including all annexed properties as of the date of this Resolution, for fiscal year 2022 the BozemanCity Commission hereby levies and assesses upon all property located within the District the respective amounts listed on Schedule A, attached hereto and by this reference made a part of this Resolution. The assessments are an amount equal to the annual cost of the programs and improvements of the District. The assessment amounts set forth on Schedule A shall be paid and collected in accordance with Commission Resolution No. 5053, and the laws of the State of Montana governing the collection of special district assessments. Failure to pay such assessment when due and payable shall make such persons and such lots and parcels of land liable to the penalties provided by law relative to delinquent taxes and assessments. The November assessments shall become delinquent at 5:01 p.m. on November 30, 2021, and the May assessments shall become delinquent at 5:01 p.m. on May 31, 2022. Section 2 The assessment basis and method of assessing the costs of the District against property herein assessed shall be as specified in Resolution No. 5053, which is hereby incorporated by this reference and made a part of this Resolution. Section 3 That the per-square-foot assessment rate in said district shall be $0.02261 per square foot of actual lot area, with a limit on the maximum square footage assessed for zones as listed below. 259 Resolution 5271, Levying and Assessing Parks and Trails District Page 3 of 5 For non-conforming residences located in business and manufacturingzoning districts without any business or manufacturing use attached, there shall be a maximum of 15,000 square feet assessed. The minimum annual assessment will be $3.50. Zoning Maximum assessment square footage (Cap) R-1 15,000 sq ft R-2 15,000 sq ft R-3 15,000 sq ft R-4 15,000 sq ft R-5 15,000 sq ft RMH 8,250 sq ft/unit RS 15,000 sq ft RO No Cap on developed parcels. Cap of 15,000 sq ft on undeveloped (parcels that have no structures and have not received subdivision review.) PLI (including MSU, Schools, Govt, Hospital, & Public Owned property) 25% of total sq ft REMU; NEHMU; UMU No Cap on developed parcels Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) All Business Zones No Cap on developed parcels Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) All Manufacturing Zones No Cap on developed parcels Cap of 15,000 square ft on undeveloped (parcels that have no structures and have not received subdivision review.) Section 4 260 Resolution 5271, Levying and Assessing Parks and Trails District Page 4 of 5 This assessment shall be levied for the fiscal year of July 1, 2021 through June 30, 2022, and be billed in October 2021 as are all other special assessments. Any condominium and/or subdivision of land recorded on or before September 30, 2021 is subject to assessment for fiscal year 2022. Section 5 Objections to the District assessments may be filed with the City Clerk at PO Box 1230 Bozeman, MT 59771 or emailed to agenda@bozeman.net. The City Commission will hear objections to these assessments at its meeting on Tuesday, August 3, 2021 beginning at 6:00 PM. Due the ongoing emergency related to the Covid-19 Pandemic, this meeting of the City Commission will not be held in person and instead will be held remotely. Instructions regarding how to participate in the remote meeting may be found on the published agenda for the August 3, 2021 meeting which will be available on the City’s website (www.bozeman.net) on the afternoon of Thursday, July 29, 2021. For any help accessing the meeting please contact the City Clerk at 582-2321. Section 6 The City Clerk of the City of Bozeman, did publish in the Bozeman Daily Chronicle a Notice signed by the City Clerk, stating that a Resolution levying and assessing a special assessment to defray the cost and expense of maintenance of all city owned parks and trails located within the City’s corporate limits for the fiscal year 2022, against the property on which such service was rendered, is on file in the office of the City Clerk and subject to inspection. Said notice states the time and place at which objections will be heard by the Commission to the final adoption of the Resolution. Said Notice waspublished at least five (5) days before the date set by the Commission for hearing objections and final adoption of this Resolution. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana at a regular session thereof held on the 3rd day of August, 2021. ____________________________ CYNTHIA ANDRUS Mayor ATTEST: 261 Resolution 5271, Levying and Assessing Parks and Trails District Page 5 of 5 ____________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ____________________________________ GREG SULLIVAN City Attorney 262 Memorandum REPORT TO:City Commission FROM:Chris Saunders, Community Development Manager Martin Matsen, Community Development Director SUBJECT:University Crossing Apartments Annexation and Zone Map Amendment, Application 21152 to Annex Approximately 10,250 Square Feet and Zone it as B-2 at 2025 W. Kagy Blvd MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Recommended City Commission Annexation Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21152 and move to approve the University Crossing Apartments Annexation with recommended terms of annexation, and direct staff to prepare an annexation agreement for signature by the parties. Recommended City Commission Zoning Motion: Having reviewed and considered the staff report, application materials, public comment, recommendation of the Zoning Commission, and all information presented, I hereby adopt the findings presented in the staff report for application 21152 and move to approve the University Crossing Apartments Zone Map Amendment, with contingencies required to complete the application processing. STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND:This application is an annexation and zone map amendment to complete the annexation and process for an earlier project, 19444. There was a survey error which omitted a small portion of the intended area. This application fixes that omission. UNRESOLVED ISSUES:None ALTERNATIVES:After making alternate findings for the review criteria recommend denial of the application. 263 FISCAL EFFECTS:None Attachments: 21152 University Crossing Apartments Annexation-ZMA Staff Report CC.pdf 21152 Application Materials.pdf Report compiled on: July 27, 2021 264 Page 1 of 30 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Public Hearing: Zoning Commission meeting July 26, 2021 City Commission meeting August 3, 2021 Project Description: Annexation 21152 requesting annexation of 10,247 square feet of land and zone map amendment 21152 of the City Zoning Map for the establishment of a zoning designation of B-2 (Community Business District). Project Location: West of 19th Avenue at 2025 W. Kagy Avenue and legally described as part of Lot 1A of Minor Subdivision No. 191-B, located in the SE ¼ of Section 14, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana. The rest of Lot 1A was previously annexed in 2020, but the survey’s legal description failed to include the subject strip of land 10,247 square feet in size, which is to be corrected with the current annexation and zone map amendment. Recommendation: Meets standards for approval with terms of annexation and contingencies. Zoning Commission Zoning Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21152 and move to recommend approval of the University Crossing Apartments Zone Map Amendment, with contingencies required to complete the application processing. Recommended City Commission Annexation Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21152 and move to approve the University Crossing Apartments Annexation with recommended terms of annexation, and direct staff to prepare an annexation agreement for signature by the parties. Recommended City Commission Zoning Motion: Having reviewed and considered the staff report, application materials, public comment, recommendation of the Zoning Commission, and all information presented, I hereby adopt the findings presented in the staff report for application 21152 and move to approve the University Crossing Apartments Zone Map Amendment, with contingencies required to complete the application processing. Report: July 26, 2021 Staff Contact: Chris Saunders, Community Development Manager 265 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 2 of 30 Lance Lehigh – Engineer III Agenda Item Type: Action - Legislative EXECUTIVE SUMMARY This report is based on the application materials submitted and public comment received to date. Unresolved Issues None identified at this time. Project Summary This application is to correct a survey error. The City reviewed and approved application 19444, the University Crossing annexation and zone map amendment, which annexed 1.62 acres to the City on January 13, 2020. A survey error in the original application omitted a portion of the property the owner wished to annex. Applicant Thomas Brown of Locati Architects, and representative Drew Kirsch of C&H Engineering and Surveying, Inc., now seek to annex 10,247 square feet of land, including adjacent right-of-way and utility easements, owned by Steven R. Aaker and Daniel Hitchcock into the Bozeman Municipal Boundary and zone the land City of Bozeman B-2 (Community Business District). The land currently is zoned Gallatin County A-S (Agricultural Suburban). The subject property is located west of 19th Avenue at 2025 W. Kagy Boulevard, Bozeman, MT. Zoning Commission The Zoning Commission held their public hearing on July 26, 2021. No public comment was received. The Zoning Commission recommends approval of the application on a vote of 4-0. The recording of the meeting is available at https://bozeman.granicus.com/player/clip/119?view_id=1&redirect=true. Alternatives 1. Approve the application and associated resolution and ordinance; 2. Approve the application with modifications to the recommended zoning; 3. Deny the application based on the Commission’s findings of non-compliance with the applicable criteria contained within the staff report; or 266 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 3 of 30 4. Open and continue the public hearing on the application, with specific direction to staff or the applicant to supply additional information or to address specific items. TABLE OF CONTENTS EXECUTIVE SUMMARY ...................................................................................................... 2 Unresolved Issues ............................................................................................................... 2 Project Summary ................................................................................................................. 2 Zoning Commission ............................................................................................................ 2 Alternatives ......................................................................................................................... 2 SECTION 1 - MAP SERIES .................................................................................................... 4 SECTION 2 - RECOMMENDED TERMS OF ANNEXATION ............................................ 7 SECTION 3 - RECOMMENDED CONTINGENCIES OF ZONE MAP AMENDMENT... 10 SECTION 4 - RECOMMENDATION AND FUTURE ACTIONS ...................................... 10 Annexation ........................................................................................................................ 10 Zone Map Amendment ..................................................................................................... 11 SECTION 5 - ANNEXATION STAFF ANALYSIS AND FINDINGS ................................ 11 SECTION 6 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS ........... 18 Spot Zoning Criteria ......................................................................................................... 25 PROTEST NOTICE FOR ZONING AMENDMENTS ......................................................... 26 APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND .............. 26 APPENDIX B - NOTICING AND PUBLIC COMMENT .................................................... 27 APPENDIX C - PROJECT GROWTH POLICY AND PROPOSED ZONING ................... 27 APPENDIX D - OWNER INFORMATION AND REVIEWING STAFF............................ 30 FISCAL EFFECTS ................................................................................................................. 30 ATTACHMENTS ................................................................................................................... 30 267 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 4 of 30 SECTION 1 - MAP SERIES Map 1: Project Vicinity Map 268 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 5 of 30 Map 2: Vicinity Map from Application showing City zoning in the vicinity of the project site (the green line) 269 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 6 of 30 Map 3: Excerpt of the Annexation Map submitted with Application 270 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 7 of 30 Map 4: Excerpt of the Zone Map Amendment map submitted with Application SECTION 2 - RECOMMENDED TERMS OF ANNEXATION The following terms of annexation are recommended to enable the application to comply with the City’s Annexation Policy and the requirements of state law for the provision of services. Recommended terms of annexation: 1. The documents and exhibits to formally annex the subject property must be identified as the “University Crossing Apartments 2021 Annexation.” 2. That the applicant must submit an Annexation map, titled “University Crossing Apartments 2021 Annexation”. The map must be supplied as a PDF. This map must be acceptable to the City Engineer’s Office, and must be submitted with the signed Annexation Agreement. Said map shall contain a metes and bounds legal description of the perimeter of the subject property including adjacent right-of-ways or street easements, and total acreage of the property to be annexed; unless the property to be annexed can be entirely described by reference to existing platted properties or certificates of survey. 271 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 8 of 30 3. The applicant must execute all contingencies and terms of said Annexation Agreement with the City of Bozeman within 60 days of the distribution of the annexation agreement from the City to the applicant or annexation approval shall be null and void. 4. If they do not already exist the applicant must provide and file with the County Clerk and Recorder's office executed Waivers of Right to Protest Creation of Special Improvement Districts (SID’s) for the following: a. Street improvements to West Kagy Boulevard including paving, curb/gutter, sidewalk, and storm drainage b. Street improvements to South 19th Avenue including paving, curb/gutter, sidewalk, and storm drainage c. Street improvements to South 27th Avenue including paving, curb/gutter, sidewalk, and storm drainage d. Intersection improvements for West Kagy Boulevard and South 19th Avenue e. Intersection improvements for West Kagy Boulevard and South 27th Avenue The document filed must specify that in the event an SID is not utilized for the completion of these improvements, the applicant agrees to participate in an alternate financing method for the completion of said improvements on a fair share, proportionate basis as determined by square footage of property, taxable valuation of the property, traffic contribution from the development, or a combination thereof. The SID waiver will be filed with the County Clerk and Recorder in conjunction with the annexation agreement. 5. The Annexation Agreement shall include the following notices: a. The Annexation Agreement must include notice that, prior to development, the applicant will be responsible for preparing a storm water master plan in conjunction with future development. b. The Annexation Agreement must include notice the City will, upon annexation, make available to the Property existing City services only to the extent currently available, or as provided in the Agreement. c. The Annexation Agreement must include notice that, prior to future final development approval, the applicant will be responsible for transfer of water rights or a payment in lieu as required by the Bozeman Municipal Code. d. The Annexation Agreement must include notice that there is no right, either granted or implied, for Landowner to further develop any of the Property until it is verified by the City that the necessary municipal services are available to the property. e. The Annexation Agreement must include notice that utility easements may be required to be provided by the landowner at the time of development to ensure necessary municipal services are available to the property. 272 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 9 of 30 f. The Annexation Agreement must include notice charges and assessments may be required after completion of annexation to ensure necessary municipal services are available to the property. g. The Annexation Agreement must include notice that the applicant must connect to municipal services and will be responsible for installing any facilities required to provide full municipal services to the property. h. The Annexation Agreement must include notice that, prior to development, the applicant will be responsible for installing any facilities required to provide full municipal services to the properties in accordance with the City of Bozeman's infrastructure master plans and all City policies that may be in effect at the time of development. i. The subject property is located within the Meadow Creek Subdivision payback district boundary for traffic signal improvements. The subject property did not participate in the original cost of construction of improvements and must participate in the payback prior to subdivision or site plan review and approval. Reference document Gallatin County Clerk and Recorder #2293491. j. The subject property is located within the Meadow Creek Subdivision payback district boundary for sewer improvements. The subject property did not participate in the original cost of construction of improvements and must participate in the payback prior to connection into City’s sewer collection system. Reference Agreement for reimbursement August 12, 2013 between the City of Bozeman and Covenant Investment, Inc. k. The Annexation Agreement must include notice that the City will assess system development/ impact fees in accordance with Montana law and Chapter 2, Article 6, Division 9, Bozeman Municipal Code. 6. All procedural terms necessary to establish the Annexation Agreement in conformance with state law and municipal practice will be included with the final Annexation Agreement. 7. The annexation description and map must include the entire width of West Kagy Boulevard not already annexed and zoned but adjacent to the property. 8. The applicant must provide a ten (10) foot utility easement (power, gas, communication, etc.) along the developments property frontage concurrent with Annexation. The applicant may contact the Engineering Department to receive a copy of a utility easement template. 9. The applicant must provide a fifteen (15) foot public street and utility easement or dedicate Right-of-Way concurrent with Annexation. The applicant may contact the Engineering Department to receive a copy of the public street and utility easement template. 273 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 10 of 30 SECTION 3 - RECOMMENDED CONTINGENCIES OF ZONE MAP AMENDMENT Please note that these contingencies are necessary for the City to complete the process of the proposed amendment. These contingencies only apply in the event that the related annexation request has previously been approved. Recommended Contingencies of Approval: 1. That all documents and exhibits necessary to establish an initial municipal zoning designation shall be identified as the “University Crossing Apartments 2021 Zone Map Amendment.” All required documents must be returned to the City within 60 days of the City Commission action to annex the property or the preliminary approval shall be null and void. 2. That the Ordinance for the Zone Map Amendment shall not be finalized until the Annexation Agreement is signed by the applicant and formally approved by the City Commission. If the annexation agreement is not approved, the Zone Map Amendment application shall be null and void. 3. That the applicant must submit a Zone Amendment map, titled “University Crossing Apartments 2021 Zone Map Amendment.” The map must be supplied as a PDF. This map must be acceptable to the City Engineer’s Office, and must be submitted within 60 days of the action to approve the zone map amendment. Said map shall contain a metes and bounds legal description of the perimeter of the subject property including adjacent right-of-ways or street easements, and total acreage of the property to be rezoned; unless the property to be rezoned can be entirely described by reference to existing platted properties or certificates of survey. 4. The Ordinance for the Zone Map Amendment shall not be drafted until the applicant provides an editable metes and bounds legal description prepared by a licensed Montana surveyor. SECTION 4 - RECOMMENDATION AND FUTURE ACTIONS Annexation Having considered the criteria established for an annexation, the Development Review Committee (DRC) recommends approval of the requested annexation. The City Commission will hold a public meeting on the annexation on August 3, 2021. The meeting will be held at 121 N. Rouse Avenue, Bozeman. The meeting will begin at 6 p.m. 274 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 11 of 30 Zone Map Amendment Having considered the criteria established for a zone map amendment, the Staff recommends approval as submitted. The University Crossing Apartments Zone Map Amendment (ZMA) is in conjunction with an annexation request. Staff’s recommendation and staff responses are predicated on approval of the annexation, application 21152. The Development Review Committee (DRC) considered the amendment. The DRC did not identify any infrastructure or regulatory constraints that would impede the approval of the application. The Zoning Commission held a public hearing on this ZMA on July 26, 2021 forwards a recommendation of approval to the Commission on the Zone Map amendment. The meeting was conducted using WebEx. Instructions for joining the meeting were provided on the agenda on the City’s website, www.bozeman.net. The meeting will begin at 6 p.m. The City Commission will hold a public hearing on the annexation and zone map amendment on August 3, 2021. The meeting will be conducted using WebEx. Instructions for joining the meeting will be provided on the agenda on the City’s website, www.bozeman.net. The meeting will begin at 6 p.m. SECTION 5 - ANNEXATION STAFF ANALYSIS AND FINDINGS In considering applications for approval of the requested annexation, the advisory boards and City Commission shall consider the following: Commission Resolution No. 5076 Criteria Commission Resolution No. 5076 Goals Goal 1: The City of Bozeman encourages annexations of land contiguous to the City. Criterion met. The strip of land in question is contiguous to the City limits along the entire length of the west boundary of the property. Goal 2: The City encourages all areas that are totally surrounded by the City to annex. Criterion met. The subject property is wholly surrounded. Only a portion of the unannexed but wholly surrounded area is being annexed with this application. 275 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 12 of 30 Goal 3: The City encourages all properties currently contracting with the City for City services such as water, sanitary sewer, and/or fire protection to annex. Not Applicable. The subject property is not currently contracting with the City for water and sewer services but is in an area covered by fire protection services. Any future development would require connecting to municipal water and sewer services. Goal 4: The City of Bozeman requires annexation of all land proposed for development lying within the existing and planned service area of the municipal water and sewer systems as depicted in their respective facility plans, any land proposed for development that proposes to utilize municipal water or sewer systems. Criterion met. The subject property lies within the planned service area of the municipal water and sewer services. Development will be proposed after annexation is completed. Goal 5: The City encourages annexations within the urban area identified on the future land use map in the current Bozeman Growth Policy. Criterion met. As shown in the maps in Section 1, the subject property is planned as Community Commercial Mixed Use. The site is nearly three miles inside of the urban area as shown on the future land use map of the growth policy. See the discussion under Criterion A of Section 6 of this report for more information on the growth policy. Goal 6: The City of Bozeman encourages annexations to make the City boundaries more regular rather than creating irregular extensions which leave unannexed gaps between annexed areas or islands of annexed or unannexed land. Neutral. The proposed annexation is a relatively minor adjustment to the City limits to include a strip of land varying from ±20- to 30- feet wide that was not included with a previous annexation. The annexation does not make the City boundaries more regular or leave unannexed gaps or islands of unannexed land. Goal 7: The City of Bozeman encourages annexations which will enhance the existing traffic circulation system or provide for circulation systems that do not exist at the present time. Neutral. The proposed annexation is a relatively minor adjustment to the City limits to include a strip of land varying from ±20- to 30- feet wide that was not included with a previous annexation. Because it is a minor adjustment and does not include new parcels with new development potential, annexation will have no effect on the existing traffic circulation system. A very small portion of right of way for Kagy Blvd will be obtained through the annexation, see Term of Annexation 9. Goal 8: The City prefers annexation of parcels of land larger than five (5) acres in size, but will allow annexation of smaller parcels if factors such as topographic 276 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 13 of 30 limitations, sanitary disposal needs, fire access, maintenance of public facilities, etc., justify a smaller annexation. Neutral. The proposed annexation is a relatively minor adjustment to the City limits to include a strip of land 10,247 square feet in size that was accidentally not included with a previous annexation of ±1.62-acres. As a correction of an initial survey error it appears reasonable to not rigorously apply the five acre preference. Goal 9: The City seeks to obtain water rights adequate for future development of the property with annexation. Criterion met. After annexation, the subject property will be bound to the provisions of 38.410.130. Section 38.410.030 requires evaluation of water adequacy and provision of water if needed at time of development. The municipal code section requires water rights or an equivalent to be provided. Exact timing and amounts required will be evaluated during development review. There are several methods to address the requirements of 38.410.130. The annexation agreement provides notice of this requirement, see Term of Annexation 5.c. The landowner will consent to this requirement by signature on the annexation agreement. Goal 10: The City of Bozeman encourages annexations for City provision of clean treated water and sanitary sewer. Neutral. The proposed annexation is a relatively minor adjustment to the City limits to include a strip of land varying from ±20- to 30- feet wide that was not included with a previous annexation. Because it is a minor adjustment and does not include new parcels with new development potential, annexation will have no significant effect on the City’s provision of clean treated water and sanitary sewer. See Term of Annexation 6 c and g. Resolution No. 5076 Policies Policy 1: Annexations must include dedication of all easements for rights-of-way for collector and arterial streets, adjacent local streets, public water, sanitary sewer, or storm or sewer mains, and Class I public trails not within the right of way for arterial or collector streets. Annexations must also include waivers of right to protest the creation of special or improvement districts necessary to provide the essential services for future development of the City. Criterion met. Some of the right-of-way for Kagy Boulevard adjacent to the strip of land proposed for annexation has previously been dedicated to the City. A small additional portion will be provided with this annexation. The annexation map depicts an additional future 15’ street dedication along the south side of the existing right-of-way for Kagy Boulevard and a future 10’ public utility easement along the south side of the future street dedication, adjacent to an existing 10’ utility easement on the previously annexed land (Lot 1A, Minor Subdivision 503A). The recommended Terms of Annexation include requirements for provision of adjacent rights-of-ways or street easements. See Terms of Annexation, 8 and 9. 277 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 14 of 30 Dedicated streets or public street and utility easements provide locations for municipal water and sewer mains. Waivers of right to protest special improvement districts are included in Term of Annexation 4 for streets likely affected by the future development of the property. Special improvement districts are a means of funding larger infrastructure improvements over time and coordinating between multiple parties. Policy 2: Issues pertaining to master planning and zoning must be addressed prior to or in conjunction with the application for annexation. Criterion met. The subject property is planned for Community Commercial Mixed Use. No change to the growth policy is required. The application includes a request for initial zoning of B-2 to match the zoning of the adjacent land previously annexed. See Section 6 - Zone Map Amendment portion of this report for analysis of the zone map amendment criteria. The City Commission will act on the zoning request at the same meeting as consideration of the annexation on August 3, 2021. Policy 3: The application for annexation must be in conformance with the current Bozeman Growth Policy. If a Growth Policy Amendment is necessary to accommodate anticipated uses, the amendment process must be initiated by the property owner and completed prior to any action for approval of the application for annexation. Criterion met. The property is designated “Community Commercial Mixed Use” on the future land use map. No growth policy amendment is required. The property is located adjacent to the existing City limits and within an area planned for urban development. For more information and discussion, see Section 6 of this report, Criterion A. Policy 4: Initial zoning classification of the property to be annexed will be determined by the City Commission, in compliance with the Bozeman Growth Policy and upon a recommendation of the City Zoning Commission, simultaneously with review of the annexation petition. Criterion met. The property proposed for annexation requests a zoning designation of B-2 to match the zoning of the adjacent land previously annexed. See Section 6 - Zone Map Amendment section of this report for review of the zoning criteria. The Zoning Commission will hold a public hearing on July 26, 2021 to make a recommendation on the requested B-2 zoning. Note: The annexation and the placement of a zoning district designation on the property by the City does not guarantee immediately available services or approval of a specific development. Section 38.300.020.C of the Unified Development Code states: “Placement of any given zoning district on an area depicted on the zoning map indicates a judgment on the part of the city that the range of uses allowed within that district are generally acceptable in that location. It is not a guarantee of approval for any given use prior to the completion of the appropriate review procedure and compliance with all of 278 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 15 of 30 the applicable requirements and development standards of this chapter and other applicable policies, laws and ordinances. It is also not a guarantee of immediate infrastructure availability or a commitment on the part of the city to bear the cost of extending services.” Policy 5: The applicant must indicate their preferred zoning classification as part of the annexation petition. Criterion met. The applicant has requested B-2, Community Business District. See Section 6 of this report for analysis of the requested zoning. Policy 6: Fees for annexation processing will be established by the City Commission. Criterion met. Applicant has paid required application fees. Policy 7: It is the policy of the City that annexations will not be approved where unpaved county roads will be the most commonly used route to gain access to the property unless the landowner proposes a method to provide for construction of the road to the City’s street standards. Criterion met. The primary access to the site is provided by West Kagy Boulevard, a paved City street. Policy 8: Prior to annexation of property, the City will require the property owner to acquire adequate and usable water rights, or an appropriate fee in lieu thereof, in accordance with Section 38.410.130 of the municipal code, as amended. Criterion met. Section 38.410.130 provides for deferral of transfer of water rights or payment in lieu until time of development through the annexation agreement. At this time, the details of future development needed to calculate the final demand for water are not available. Therefore, Term of Annexation 5.c to be included in the annexation agreement requires the land owner to consent to a future payment or other approved option when the necessary information is provided and development proposed. This typically occurs at the time of subdivision or site plan review depending on the nature of future development. Policy 9: Infrastructure and emergency services for an area proposed for annexation will be reviewed for the health, safety and welfare of the public and conformance with the City’s adopted facility plans. If the City determines adequate services cannot be provided to ensure public health, safety and welfare, the City may require the property owner to provide a written plan for accommodation of these services, or the City may reject the petition for annexation. Additionally, the parcel to be annexed may only be provided sanitary sewer service via the applicable drainage basin defined in the City Wastewater Collection Facilities Plan. Criterion met. The area proposed for annexation is adjacent to the City, and the annexation would be a relatively minor adjustment to the City limits to include a strip of land varying from ±20- to 30- feet wide that was not included with a previous annexation. City emergency 279 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 16 of 30 services can be extended to the annexation area. The site is located within the City’s planned water and sewer service area. Future development will require extension of municipal water to support fire suppression and potable water. Because it is a minor adjustment and does not include new parcels with new development potential, annexation will have no significant effect on the City’s provision of services. Policy 10: The City may require annexation of any contiguous property for which city services are requested or for which city services are currently being provided. In addition, any person, firm, or corporation receiving water or sewer service outside of the City limits is required as a condition of initiating or continuing such service, to consent to annexation of the property serviced by the City. The City Manager may enter into an agreement with a property owner for connection to the City’s sanitary sewer or water system in an emergency conditioned upon the submittal by the property owner of a petition for annexation and filing of a notice of consent to annexation with the Gallatin County Clerk and Recorder’s Office. The contract for connection to city sewer and/or water must require the property owner to annex or consent to disconnection of the services. Connection for purposes of obtaining City sewer services in an emergency requires, when feasible as determined by the City, the connection to City water services. Neutral/not applicable. This policy is to address circumstances such as emergency connections to City sewer services due to a failed on-site septic system. No emergency connection is requested. The property owner is seeking annexation, and City services will be required to be provided concurrent with future development. Policy 11: The annexation application shall be accompanied by mapping to meet the requirements of the Director of Public Works. Where an area to be annexed can be entirely described by reference to a certificate of survey or subdivision plat on file with the Gallatin County Clerk and Recorder the mapping may be waived by the Director of Public Works. Criterion met. Mapping to meet the requirements of the Director of Public Works must be provided with the Annexation Agreement as required by recommended Term of Annexation #2. Typically, this includes a digital copy containing the metes and bounds legal description of said property. Policy 12: The City will assess system development/ impact fees in accordance with Montana law and Chapter 2, Article 6, Division 9, Bozeman Municipal Code. Criterion met. This annexation does not trigger immediate payment of fees. The annexation agreement will provide notice of obligations to pay impact fees at times and amounts as required in ordinance. See Term of Annexation 5.k of the annexation agreement. Chapter 2, Article 6, Division 9 are the City’s impact fee regulations. 280 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 17 of 30 Policy 13: Public notice requirements: Notice for annexation of property must be coordinated with the required notice for the zone map amendment required with all annexation. The zone map amendment notice must contain the materials required by 38.220.410, BMC. Criterion met. Notices of the public hearing have been mailed, published in the Bozeman Daily Chronicle, and posted on the site as required under this policy. See Appendix A for more details. Policy 14: Annexation agreements must be executed and returned to the City within 60 days of distribution of the annexation agreement by the City, unless another time is specifically identified by the City Commission. Neutral. Per the recommended Terms of Annexation, which will require an annexation agreement in accordance with this policy, this policy will be implemented after the Commission acts on preliminary approval or denial of this application. As this is a future event, the action is not yet applicable. Policy 15: When possible, the use of Part 46 annexations is preferred. Criterion met. State law authorizes several methods of annexation. Title 7 Chapter 2 Part 46, MCA is one of those methods. Part 46 is annexation at the request of the landowner. This annexation is being processed under Part 46 provisions. As noted in Section 7-2-4609, Applicability of Part, when an annexation is processed under Part 46 only the provisions of Part 46 apply to the review. Policy 16: Where a road improvement district has been created, the annexation does not repeal the creation of the district. The City will not assume operations of the district until the entirety of the district has been annexed. Any funds held in trust for the district will be used to benefit the district after transfer to the City. Inclusion within a district does not lessen the obligation to participate in general city programs that address the same subject. Not applicable. No road improvement district is associated with any part of this application. Policy 17: The City will notify the Gallatin County Planning Department and Fire District providing service to the area of applications for annexation. Criterion met. The listed agencies were notified and provided copies of the annexation application materials on July 7th, 2021. Policy 18: The City will require connection to and use of all City services upon development of annexed properties. The City may establish a fixed time frame for connection to municipal utilities. Upon development, unless otherwise approved by the City, septic systems must be properly abandoned and the development connected to the City sanitary sewer system. Upon development, unless otherwise approved by the City, water wells on the subject property may be used for irrigation, but any potable uses 281 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 18 of 30 must be supplied from the City water distribution system and any wells disconnected from structures. The property owner must contact the City Water and Sewer Superintendent to verify disconnects of wells and septic systems. Criterion met. The strip of land proposed for annexation is not developed or connected to any on-site water or sanitary sewer systems. Recommended Term of Annexation #6 addresses future service connection requirements upon development. Section 6 of the annexation agreement executes the terms of annexation. SECTION 6 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for plan approval under this title, the advisory boards and City Commission must consider the following criteria (letters A-K). As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. A zone map amendment must be in accordance with the growth policy (criteria A) and be designed to secure safety from fire and other dangers (criteria B), promote public health, public safety, and general welfare (criteria C), and facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements (criteria D). Therefore, to approve a zone map amendment the Commission must find Criteria A-D are met. In addition, the Commission must also consider criteria E-K, and may find the zone map amendment to be positive, neutral, or negative with regards to these criteria. To approve the zone map amendment, the Commission must find the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. In determining whether the criteria are met, Staff considers the entire body of plans and regulations for land development. Standards which prevent or mitigated negative impacts are incorporated throughout the entire municipal code but are principally in Chapter 38, Unified Development Code. References in the text of this report to Articles, Divisions, or in the form XX.XXX.XXX are to the Bozeman Municipal Code. Section 76-2-304, MCA (Zoning) Criteria A. Be in accordance with a growth policy. Criterion met. The application was initially submitted on April 2, 2021. On November 17, 2020, the City Commission adopted a new growth policy, the Bozeman Community Plan 2020, (BCP 2020) which replaced the prior growth policy. The following review examines the growth policy now in place and all references are to that document. The BCP 2020, Chapter 5, p. 73-78, in the section titled Review Criteria For Zoning Amendments And Their Application, discusses how the state required zoning criteria in 76- 282 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 19 of 30 2-304 MCA are applied locally. These criteria are presented and analyzed in this section of the report. Application of the criteria varies depending on whether an amendment is for the zoning map or for the text of Chapter 38, BMC. The first criterion for a zoning amendment is to be accordance with a growth policy. Future Land Use Map The proposed amendment is a change to the zoning map. Therefore, it is necessary to analyze compliance with the future land use map. Chapter 3 of the BCP 2020 addresses the future land use map. The introduction to Chapter 3 discusses the importance of the chapter. Following are some excerpts. “Future land use is the community’s fundamental building block. It is an illustration of the City’s desired outcome to accommodate the complex and diverse needs of its residents.” “The land use map sets generalized expectations for what goes where in the community. Each category has its own descriptions. Understanding the future land use map is not possible without understanding the category descriptions.” As shown on the future land use map available through the Community Development Viewer on the City’s website, the strip of land is designated as “Community Commercial Mixed Use”, and is surrounded by an area designated “Community Commercial Mixed Use”. The Community Commercial Mixed Use designation description reads: “The Community Commercial Mixed Use category promotes commercial areas necessary for economic health and vibrancy. This includes professional and personal services, retail, education, health services, offices, public administration, and tourism establishments. Density is expected to be higher than it is currently in most commercial areas in Bozeman and should include multi-story buildings. Residences on upper floors, in appropriate circumstances, are encouraged. The urban character expected in this designation includes urban streetscapes, plazas, outdoor seating, public art, and hardscaped open space and park amenities. High density residential areas are expected in close proximity. Developments in this land use area should be located on one or two quadrants of intersections of the arterial and/or collector streets and integrated with transit and non- automotive routes. Due to past development patterns, there are also areas along major streets where this category is organized as a corridor rather than a center. Although a broad range of uses may be appropriate in both types of locations, the size and scale is to be smaller within the local service areas. Building and site designs made to support easy reuse of the building and site over time is important. Mixed use areas should be developed in an integrated, pedestrian friendly manner and should not be overly dominated by any single use. Higher intensity uses are encouraged in the core of the area 283 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 20 of 30 or adjacent to significant streets and intersections. Building height or other methods of transition may be required for compatibility with adjacent development. Smaller neighborhood scale areas are intended to provide local service to an area of approximately one half-mile to one mile radius as well as passersby. These smaller centers support and help give identity to neighborhoods by providing a visible and distinct focal point as well as employment and services. Densities of nearby homes needed to support this scale are an average of 14 to 22 dwellings per net acre.” The correlation between the future land use map of the growth policy and the zoning districts is presented in Table 4 of the Bozeman Community Plan 2020. As shown in the following excerpts from Table 4, the proposed B-2 district is an implementing district of the Community Commercial Mixed Use category. The full table is provided in Appendix C. Based on the proposed B-2 district’s proper correlation with the future land use map category as an implementing district for Community Commercial Mixed Use. The zone map amendment is in accordance with the future land use map. Goals and Policies This section evaluates compliance with the goals and policies contained within the BCP 2020. The zone map amendment can be found to both accord to the BCP 2020 and implement the plan. Staff has found no conflict between the proposed zone map amendments and the Bozeman Community Plan 2020 and have found accordance between the amendments and the plan. Further, approval of the application may implement the BCP 2020 by acting to further the objectives of the plan. Considering this proposed annexation of a variable 20- to 30-foot wide strip of land is a minor adjustment to align with a property line, and would not include new parcels for new development, the proposed annexation is primarily neutral in terms of “implementing” the growth policy’s goals and policies. Approval of this proposal would be in accordance with the following goal and objectives of the Community Plan: Goal DCD-1: Support urban development within the City. 284 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 21 of 30 Objective DCD-1.11: Pursue annexations consistent with the future land use map and adopted facility plans for development at urban intensity. RC-3.4 Encourage annexation of land adjacent to the City prior to development and encourage annexation of wholly surrounded areas. By being consistent with the future land use map as described above, the annexation would be in accordance with Objective RC-3.4, DCD-1.11, and support urban development within the City, thus being in accordance with Goal DCD-1. B. Secure safety from fire and other dangers. Criterion met. The property previously annexed and zoned B-2 is currently served by City of Bozeman Fire and Police Departments, and annexation of the narrow strip of land with City B-2 zoning would facilitate provision of these city services at the entire site. This site also has access to emergency services. Future development of the property will be required to conform to all City of Bozeman public safety, building and land use requirements, which will ensure this criterion is met. The zone change is not likely to adversely impact safety from fire and other dangers. C. Promote public health, public safety, and general welfare. Criterion met. City development standards included in Chapter 38, Unified Development Code, building codes, and engineering standards all ensure that this criterion is met. Adequate water and sewer supply and conveyance provide for public health through clean water. Rapid and effective emergency response provides for public safety. The City’s standards ensure that adequate services are provided prior to building construction which advances this criterion. General welfare has been evaluated during the adoption of Chapter 38 and found to be advanced by the adopted standards. Provision of parks, control of storm water, and other features of the City’s development standards also advance the general welfare. The annexation will fill in a small part of a wholly surrounded unannexed area which advances community priorities. Compliance with the BCP 2020 as described in Section 6, Criterion A, shows advancement of the well-being of the community as a whole. D. Facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements. Criterion met. The BCP 2020, page 74, says the following regarding evaluation of Section 6, Criteria B, C, & D for zoning amendments: “For a map amendment, all three of the above elements are addressed primarily by the City’s long range facility Plans, the City’s capital improvements program, and development standards adopted by the City. The standards set minimum sizing and flow requirements, require dedication of parks, provision of right of way for people and vehicles, keep development out of floodplains, and other items to address public safety, etc. It is often difficult to assess these issues in detail on a specific site. 285 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 22 of 30 For example, at the time of annexation, the final intensity of development is unknown and it may be many years before development occurs and the impacts are experienced. The availability of other planning and development review tools must be considered when deciding the degree of assurance needed to apply an initial zoning at annexation.” The City conducts extensive planning for municipal transportation, water, sewer, parks, and other facilities and services provided by the City. The adopted plans allow the City to consider existing conditions and identify enhancements needed to provide additional service needed by new development. The City implements these plans through its capital improvements program that identifies individual projects, project construction scheduling, and financing of construction. As stated in 38.300.020.C, the designation of a zoning district does not guarantee approval of new development until the City verifies the availability of needed infrastructure. All zoning districts in Bozeman enable a wide range of uses and intensities. At time of future subdivision or site plan review the need for individual services can be more precisely determined. No subdivision or site plan is approved without demonstration of adequate capacity. 38.300.020.C, “Placement of any given zoning district on an area depicted on the zoning map indicates a judgment on the part of the city that the range of uses allowed within that district are generally acceptable in that location. It is not a guarantee of approval for any given use prior to the completion of the appropriate review procedure and compliance with all of the applicable requirements and development standards of this chapter and other applicable policies, laws and ordinances. It is also not a guarantee of immediate infrastructure availability or a commitment on the part of the city to bear the cost of extending services.” Annexation of the strip of land varying from ±20- to 30- feet wide that was not included with a previous annexation would facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements by including the entire project site. The area proposed for annexation is adjacent to the City, and the annexation would be a relatively minor adjustment to the City limits. The site is located within the City’s planned water and sewer service areas, and City emergency services can be extended to the annexation area. In addition, because it is a minor adjustment and does not include new parcels with new development potential, annexation will have no significant impact on the City’s provision of these services, but will facilitate the provision of services administratively by including the entire project site within the City limits. E. Reasonable provision of adequate light and air. Criterion met. This criterion is not about individual preferences for a given degree of visual openness but about preservation of public health. The B-2 district provides adequate light and air through the Bozeman Unified Development Code’s standards for park and recreation requirements, maximum building height, lot coverage, and setback requirements. The form 286 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 23 of 30 and intensity standards, Division 38.320, provide minimum lot areas lot widths, lot coverage and maximum floor area ratios, and prescribe require minimum separation from property lines and limits building heights. Section 38.520.030 requires building placement to ensure access to light and air. Division 38.420 and Section 38.520.060 require dedication of parks and on-site open spaces to meet needs of residents. The standards provide a reasonable provision of adequate light and air. In addition to the zoning standards, adopted building codes contain more detailed requirements for air circulation, window placement, and building separation that further ensure the intent of this criterion is satisfied. F. The effect on motorized and non-motorized transportation systems. Criterion met. Annexation of the narrow strip of land that was not included with a previous annexation would have no substantive effect on motorized and non-motorized transportation systems. It is a minor adjustment and does not include new parcels with new development potential that would impact the transportation systems. The growth policy encourages development to be walkable, which is defined in the glossary as: Walkable. A walkable area has: • A center, whether it’s a main street or a public space. • People: Enough people for businesses to flourish and for public transit to run frequently. • Parks and public space: Functional and pleasant public places to gather and play. • Pedestrian design: Buildings are close to the street, parking lots are relegated to the back. • Schools and workplaces: Close enough that walking to and from home to these destinations is realistic. • Complete streets: Streets designed for bicyclists, pedestrians, and transit. With the complexity of features needed to create a walkable environment, no one site is likely to provide all the needed elements. The additional density will help provide for element two with potential for additional persons in the area. The site is part of the commercial node at S. 19th Avenue and Kagy Boulevard which provides for elements one and four. The site has a Walk Score of 31, a Transit score of 7, and a Bike Score of 59. Average walk score for the city as a whole is 48 out of 100. These values are provided by Walk Score, a private organization which presents information on real estate and transportation through walkscore.com. The algorithm which produces these numbers is proprietary. A score is not an indication of safety or continuity of services or routes. Scores are influenced by proximity of housing, transit, and services and expected ability, as determined by the algorithm, to meet basic needs without using a car. Sites located on the edge of the community, such as this site, will have lower scores than those in the center of the community as the area is still under 287 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 24 of 30 development and therefore diversity of uses is less than in fully established areas. There are no adopted development standards relating to the walk score. G. Promotion of compatible urban growth. Criterion met. The Bozeman Community Plan establishes a preferred and compatible development pattern. “The land use map sets generalized expectations for what goes where in the community… The land use categories and descriptions provide a guide for appropriate development and redevelopment locations for civic, residential, commercial, industrial, and other uses. The future land use designations are important because they aim to further the vision and goals of the City through promoting sustainability, citizen and visitor safety, and a high quality of life that will shape Bozeman’s future.” (Community Plan P. 51) The City’s future land use map designates the strip of land as Community Commercial Mixed Use. This designation correlates with several zoning districts including the B-2 district proposed by the applicants, which has been developed by the City to promote appropriate urban growth compatible with the areas of the City as identified on the future land use map. Based on the land use map designation and correlating B-2 district in the plan and proposed by the applicants, the zone map amendment would promote compatible urban growth. Also see the discussion in (H) below. H. Character of the district. Criterion met. Inclusion of the narrow strip of land into the City limits with B-2 zoning that was not included with a previous annexation and zone map amendment would have no effect on the character of the district because it is a minor change to the zoning map and does not include any changes to the text or include new parcels with new development potential that could change the character of the B-2 district. The area is presently agricultural but planned for urban uses. The annexation and zoning is a continuation of the planned urban development for the area. The property to the east across 19th Avenue has recently been approved for subdivision for urban development. I. Peculiar suitability for particular uses. Criterion met. The annexation of the narrow strip of land and associated zone map amendment would enhance the suitability of the site for the intended uses by including the entirety of the project site in the City limits. J. Conserving the value of buildings. Neutral. The zone map amendment to include the strip of land in the B-2 district does not include any changes to the text or include new parcels with new development potential that could impact the value of any buildings. There are no buildings on the area being annexed and zoned. 288 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 25 of 30 K. Encourage the most appropriate use of land throughout the jurisdictional area. Criterion met. As stated above, the Bozeman Community Plan illustrates the most appropriate use of the land through the future land use map, which this application complies with by proposing a zone map amendment of the B-2 district that will continue to implement the future land use map designations. In this case, commercial and mixed-use development have been identified by the community as the most appropriate types of development for the property. The Unified Development Code contains standards, protections and review processes to ensure the land is developed in ways that are appropriate to a site’s context and according to the Bozeman Community Plan. Spot Zoning Criteria Rezoning may, in certain factual circumstances, constitute impermissible “spot zoning.” The issue of whether a rezoning constitutes spot zoning was discussed by the Montana Supreme Court in Plains Grains LP v. Board of County Comm’rs of Cascade County and Little v. Bd. Of County Comm’rs, in which the Court determined that the presence of the following three conditions generally will indicate that a given situation constitutes spot zoning, regardless of variations in factual scenarios. Based on the review of the following criteria, Staff concludes that this application is not Spot Zoning. 1. Is the proposed use significantly different from the prevailing land uses in the area? Criterion not met. The zone map amendment would only enhance the suitability of the site for the intended uses by including the entirety of the project site in the City limits, and because the project does not rezone new parcels with new development potential, approval of the zone map amendment would not introduce land uses significantly different than the prevailing land uses in the area. The adjacent tract to the immediate east and areas to the northeast and northwest are zoned as B-2 which is the same as the requested zoning. Therefore, the uses are not significantly different. 2. Is the area requested for the rezone rather small in terms of the number of separate landowners benefited from the proposed change? Criterion met. The application is submitted by one landowner for a portion of a tract of record – a narrow strip to be added to a previous rezone. Division 38.260 Part 2 describes the process to request a zone map amendment and its review. Section 38.260.100 explicitly authorizes an individual landowner to initiate a zone map amendment. The BCP 2020 also discusses the initiation of zone map amendments. On page 72, the needed justification for a zone map change is discussed. It states that landowner preference, when coupled with compliance with the criteria established in statute, is sufficient to justify an amendment. 289 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 26 of 30 3. Would the change be in the nature of “special legislation” designed to benefit only one or a few landowners at the expense of the surrounding landowners or the general public? Criterion not met. While only one landowner would ‘benefit’ from the zone change, there is no reason to believe this would come at the expense of surrounding landowners or the general public. To the contrary, the BCP 2020 is an expression of the public’s desires for different types and scales of urban development throughout the City. The proposed zoning aligns with the Community Plan, and therefore would be to the benefit of the general public. It is important to note the zone map amendment is that of a narrow strip of land previously excluded in error from an earlier zone map amendment. PROTEST NOTICE FOR ZONING AMENDMENTS IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION. The City will accept written protests from property owners against the proposal described in this report until the close of the public hearing before the City Commission. Pursuant to 76-2-305, MCA, a protest may only be submitted by the owner(s) of real property within the area affected by the proposal or by owner(s) of real property that lie within 150 feet of an area affected by the proposal. The protest must be in writing and must be signed by all owners of the real property. In addition, a sufficient protest must: (i) contain a description of the action protested sufficient to identify the action against which the protest is lodged; and (ii) contain a statement of the protestor's qualifications (including listing all owners of the property and the physical address), to protest the action against which the protest is lodged, including ownership of property affected by the action. Signers are encouraged to print their names after their signatures. A person may in writing withdraw a previously filed protest at any time prior to final action by the City Commission. Protests must be delivered to the Bozeman City Clerk, 121 North Rouse Ave., PO Box 1230, Bozeman, MT 59771-1230. APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND Applicant Thomas Brown of Locati Architects, and representative Drew Kirsch of C&H Engineering and Surveying, Inc., seek to annex 10,247 square feet of land, including adjacent right-of-way and utility easements, owned by Steven R. Aaker and Daniel Hitchcock into the 290 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 27 of 30 Bozeman Municipal Boundary and zone the land City of Bozeman B-2 (Community Business District), which is currently zoned Gallatin County A-S (Agricultural Suburban). The subject property is located west of 19th Avenue at 2025 W. Kagy Avenue, Bozeman, MT. The proposed annexation is a relatively minor adjustment to the City limits to include a 10,247 square foot strip of land varying from ±20- to 30- feet wide that was not included with a previous annexation of ±1.62-acres. The Bozeman Community Plan designates the property as “Community Commercial Mixed Use”. The proposed B-2 zoning district is in accordance with the Community Plan designation. Urban utilities and services are available. APPENDIX B - NOTICING AND PUBLIC COMMENT Notice of the application and public hearings was published in the Bozeman Daily Chronicle on July 11th and 25th, 2021. Notice was sent via first class mail to adjacent landowners on July 10, 2021 and posted on the property on July 9, 2021. No public comments have been received to date. APPENDIX C - PROJECT GROWTH POLICY AND PROPOSED ZONING Adopted Growth Policy Designation: The property is designated as “Community Commercial Mixed Use” in the Bozeman Community Plan. The Community Commercial Mixed Use category promotes commercial areas necessary for economic health and vibrancy. This includes professional and personal services, retail, education, health services, offices, public administration, and tourism establishments. Density is expected to be higher than it is currently in most commercial areas in Bozeman and should include multi-story buildings. Residences on upper floors, in appropriate circumstances, are encouraged. The urban character expected in this designation includes urban streetscapes, plazas, outdoor seating, public art, and hardscaped open space and park amenities. High density residential areas are expected in close proximity. Developments in this land use area should be located on one or two quadrants of intersections of the arterial and/or collector streets and integrated with transit and non-automotive routes. Due to past development patterns, there are also areas along major streets where this category is organized as a corridor rather than a center. Although a broad range of uses may be appropriate in both types of locations, the size and scale is to be smaller within the local service areas. Building and site designs made to support easy reuse of the building and site over time is important. Mixed use areas should be developed in an integrated, pedestrian friendly manner and should not be overly dominated by any single use. Higher intensity uses are encouraged in 291 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 28 of 30 the core of the area or adjacent to significant streets and intersections. Building height or other methods of transition may be required for compatibility with adjacent development. Smaller neighborhood scale areas are intended to provide local service to an area of approximately one half-mile to one mile radius as well as passersby. These smaller centers support and help give identity to neighborhoods by providing a visible and distinct focal point as well as employment and services. Densities of nearby homes needed to support this scale are an average of 14 to 22 dwellings per net acre. Proposed Zoning Designation and Land Uses: The applicant has requested zoning of City of Bozeman B-2 (Community Business District) in association with the annexation of the property. The intent of the B-2 community business district is to provide for a broad range of mutually supportive retail and service functions located in clustered areas bordered on one or more sides by limited access arterial streets. Multi-household dwellings, townhouses, and apartments are allowed as a secondary use due to their complementary nature and ability to enhance the walkability of these districts. Design standards emphasizing pedestrian oriented design are important elements of this district. Use of this zone is appropriate for arterial corridors, commercial nodes, and/or areas served by transit. Table 4 of the Bozeman Community Plan 2020 shows the correlation between future land use map designations and implementing zoning districts. The red boxes indicate the applicability of this proposed ZMA, illustrating how the proposed B-2 district correlates with its Community Commercial Mixed Use designation of the Future Land Use Map: 292 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 29 of 30 293 21152 Staff Report for the University Crossing Apartments Annexation and Zone Map Amendment Page 30 of 30 APPENDIX D - OWNER INFORMATION AND REVIEWING STAFF Owner: Steven R. Aaker and Daniel Hitchcock, 1658 Deer Mountain Circle, Broomfield, CO, 80023-9450 Applicant: Thomas Brown, Locati Architects, 1007 East Main, Bozeman, MT, 59715 Representative: Drew Kirsch, C&H Engineering and Surveying, Inc., 1091 Stoneridge Drive, Bozeman, MT, 59718 Report By: Chris Saunders, Community Development Manager FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Annexation or Zone Map Amendment. ATTACHMENTS The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. Application materials are at: https://weblink.bozeman.net/WebLink/Browse.aspx?startid=235476 294 295 Drew Kirsch296 297 298 299 UNIVERSITY CROSSING ANNEXATION AND INITIAL ZONING APPLICATION April, 2021 #210228 ANNEXATION AND INITIAL ZONING ANNEXATION AND INITIAL ZONING SECTION ONE: GOALS 1. The City of Bozeman encourages annexations of land contiguous to the City. The property is contiguous to the City. 2. The City encourages all areas that are totally surrounded by the City to annex. The property is contiguous to the City on three of four sides. It is not totally surrounded. 3. The City encourages all properties currently contracting with the City for City services such as water, sanitary sewer, and/or fire protection to annex. No water services are currently stubbed in to the property. Water main extensions with domestic and fire services are proposed with the proposed site plan. It is within fire- fighting distance of a City fire hydrant and adjacent to a City sanitary sewer main. 4. The City of Bozeman requires annexation of all land proposed for development lying within the existing and planned service area of the municipal water and sewer systems as depicted in their respective facility plans, any land proposed for development that proposes to utilize municipal water or sewer systems. The subject property lies within the existing service area of the City’s municipal water and sewer systems. 5. The City encourages annexations within the urban area identified on the future land use map in the current Bozeman Growth Policy. The subject property lies within the Community Commercial Mixed Use (CCMU) land use area on the Future Land Use Map of the Bozeman Community Plan (2020). 6. The City of Bozeman encourages annexations to make the City boundaries more regular rather than creating irregular extensions which leave unannexed gaps between annexed areas or islands of annexed or unannexed land. The annexation of the subject property will smooth out a jagged section of the city limits. 7. The City of Bozeman encourages annexations which will enhance the existing traffic circulation system or provide for circulation systems that do not exist at the present time. The annexation of the subject property is likely to enhance existing traffic circulation with the required dedication of the full Kagy Boulevard right-of-way at full build-out. 8. The City prefers annexation of parcels of land larger than five (5) acres in size, but will allow annexation of smaller parcels if factors such as topographic limitations, sanitary disposal needs, fire access, maintenance of public facilities, etc., justify a smaller annexation. The property is 0.235 acres that will be added to Lot 1A, Minor Subdivision 503A. The need for connection to City services and the factors outlined above make it a good candidate for annexation although it is less than the preferred 5 acre minimum. 9. The City seeks to obtain water rights adequate for future development of the property with annexation. Sec. 38.410.130.C.5 BMC allows deferral of CILWR for commercial uses until the time of site plan. Given the particular water use details of the future development aren’t known at this point, the deferral is the best path to take with the annexation. 300 UNIVERSITY CROSSING ANNEXATION AND INITIAL ZONING APPLICATION April, 2021 #210228 ANNEXATION AND INITIAL ZONING 10. The City of Bozeman encourages annexations for City provision of clean treated water and sanitary sewer. The subject property will be served by existing City water and sewer mains located in the Kagy Boulevard Right of Way. SECTION TWO: POLICIES 1. Annexations must include dedication of all easements for rights-of-way for collector and arterial streets, adjacent local streets, public water, sanitary sewer, or storm or sewer mains, and Class I public trails not within the right of way for arterial or collector streets. Annexations must also include waivers of right to protest the creation of special or improvement districts necessary to provide the essential services for future development of the City. The existing and proposed right-of-way dedications are shown on the Annexation and Initial Zoning Maps. All applicable easements and waivers will be completed. 2. Issues pertaining to master planning and zoning must be addressed prior to or in conjunction with the application for annexation. No issues pertaining to master planning and zoning are anticipated at this time. 3. The application for annexation must be in conformance with the current Bozeman Growth Policy. If a Growth Policy Amendment is necessary to accommodate anticipated uses, the amendment process must be initiated by the property owner and completed prior to any action for approval of the application for annexation. The subject property is designated in the Bozeman Community Plan as Community Commercial Mixed Use. The proposed B-2 zoning complies the current Community Plan. 4. Initial zoning classification of the property to be annexed will be determined by the City Commission, in compliance with the Bozeman Growth Policy and upon a recommendation of the City Zoning Commission, simultaneously with review of the annexation petition. The subject property is proposed to be B-2 zoning classification. 5. The applicant must indicate their preferred zoning classification as part of the annexation petition. The subject property is proposed to be B-2 zoning classification. 6. Fees for annexation processing will be established by the City Commission. This is understood. 7. It is the policy of the City that annexations will not be approved where unpaved county roads will be the most commonly used route to gain access to the property unless the landowner proposes a method to provide for construction of the road to the City’s street standards. The subject property is fronted on the north by Kagy Boulevard, a paved City street. The primary proposed access will likely be by means of the existing drive access to the east. No new roads are proposed to access the property. 301 UNIVERSITY CROSSING ANNEXATION AND INITIAL ZONING APPLICATION April, 2021 #210228 ANNEXATION AND INITIAL ZONING 8. Prior to annexation of property, the City will require the property owner to acquire adequate and useable water rights, or an appropriate fee in lieu thereof, in accordance with Section 38.410.130 of the municipal code, as amended. Sec. 38.410.130.C.5 BMC allows deferral of CILWR for commercial uses until the time of site plan. Given the particular water use details of the future development aren’t known at this point, the deferral is the best path to take with the annexation. 9. Infrastructure and emergency services for an area proposed for annexation will be reviewed for the health, safety and welfare of the public and conformance with the City’s adopted facility plans. If the City determines adequate services cannot be provided to ensure public health, safety and welfare, the City may require the property owner to provide a written plan for accommodation of these services, or the City may reject the petition for annexation. Additionally, the parcel to be annexed may only be provided sanitary sewer service via the applicable drainage basin defined in the City Wastewater Collection Facilities Plan. City water and sewer mains already exist in the adjacent road right-of-way (Kagy Boulevard). Water and Sewer Mains are proposed to serve the proposed development. 10. The City may require annexation of any contiguous property for which city services are requested or for which city services are currently being provided. In addition, any person, firm, or corporation receiving water or sewer service outside of the City limits is required as a condition of initiating or continuing such service, to consent to annexation of the property serviced by the City. The City Manager may enter into an agreement with a property owner for connection to the City’s sanitary sewer or water system in an emergency conditioned upon the submittal by the property owner of a petition for annexation and filing of a notice of consent to annexation with the Gallatin County Clerk and Recorder’s Office. The contract for connection to city sewer and/or water must require the property owner to annex or consent to disconnection of the services. Connection for purposes of obtaining City sewer services in an emergency requires, when feasible as determined by the City, the connection to City water services. This is not applicable to the annexation request presented with this application. 11. The annexation application shall be accompanied by mapping to meet the requirements of the Director of Public Works. Where an area to be annexed can be entirely described by reference to a certificate of survey or subdivision plat on file with the Gallatin County Clerk and Recorder. A map entitled “University Crossing 2 Annexation Map” is included with this application. 12. The mapping may be waived by the Director of Public Works. A map entitled “University Crossing 2 Annexation Map” is included with this application. 13. The City will assess system development/impact fees in accordance with Montana law and Chapter 2, Article 6, Division 9, Bozeman Municipal Code. This is understood. 302 UNIVERSITY CROSSING ANNEXATION AND INITIAL ZONING APPLICATION April, 2021 #210228 ANNEXATION AND INITIAL ZONING 14. Public notice requirements: Notice for annexation of property must be coordinated with the required notice for the zone map amendment required with all annexation. The zone map amendment notice must contain the materials required by 38.220.410, BMC. This is understood. 15. Annexation agreements must be executed and returned to the City within 60 days of distribution of the annexation agreement by the City, unless another time is specifically identified by the City Commission. This is understood. 16. When possible, the use of Part 46 annexations is preferred. This annexation application is proposing the use of Part 46. 17. Where a road improvement district has been created, the annexation does not repeal the creation of the district. The City will not assume operations of the district until the entirety of the district has been annexed. Any funds held in trust for the district will be used to benefit the district after transfer to the City. Inclusion within a district does not lessen the obligation to participate in general city programs that address the same subject. This is understood. 18. The City will notify the Gallatin County Planning Department and Fire District providing service to the area of applications for annexation. This is understood. 19. The City will require connection to and use of all City services upon development of annexed properties. The City may establish a fixed time frame for connection to municipal utilities. Upon development, unless otherwise approved by the City, septic systems must be properly abandoned and the development connected to the City sanitary sewer system. Upon development, unless otherwise approved by the City, water wells on the subject property may be used for irrigation, but any potable uses must be supplied from the City water distribution system and any wells disconnected from structures. The property owner must contact the City Water and Sewer Superintendent to verify disconnects of wells and septic systems. This is understood. The property is undeveloped and no septic system or well currently exists. INITIAL ZONING PROJECT NARRATIVE A. Is the new zoning designation in accordance with the growth policy? How? Yes. According to the Bozeman Community Plan (2020) on Future Land Use Map, the subject property is designated “Community Commercial Mixed-use”. The proposed community business district (B-2) zoning falls under this category. The proposed B-2 zoning will blend with the surrounding B-2 and R-O. B. Will the new zoning secure safety from fire and other dangers? How? 303 UNIVERSITY CROSSING ANNEXATION AND INITIAL ZONING APPLICATION April, 2021 #210228 ANNEXATION AND INITIAL ZONING Yes. The subject property is 1.2 miles (6-minute drive) from Bozeman Fire Station 2. There are existing fire hydrants located on the properties to the east and north. Additional hydrants are proposed along Kagy Boulevard to the north. Zoning the subject property B-2 will not have any anticipated negative effects on the fire safety for the property. There are no other anticipated dangers associated with the lot. C. Will the new zoning promote public health, public safety and general welfare? How? Yes. The B-2 zoning designation will allow for development that will blend with the existing lots that border the property. Public health will be improved by connecting to municipal sanitary sewer and water systems, which will prevent groundwater pollution and depletion by wells and septic systems. Additionally, stormwater will be treated and detained on site, which reduces the strain on existing city stormwater infrastructure. The right-of-way dedication along Kagy Boulevard will provide adequate room for improvements to Kagy Boulevard, increasing vehicle and pedestrian safety. D. Will the new zoning facilitate the adequate provision of transportation, water, sewage, schools, parks, and other public requirements? How? Yes. Existing and proposed City water and sanitary sewer mains will be utilized for the development of the subject property. The Kagy Boulevard right-of-way will facilitate adequate provision transportation. E. Will the new zoning provide reasonable provision of adequate light and air? How? The proposed zoning will allow development at a similar density to the adjacent parcels. This will ensure adequate light and air for the current tenants in buildings to the north and east. F. Will the new zoning have an effect on motorized and non-motorized transportation systems? How? Yes. The new zoning is likely to increase both non-motorized and motorized transportation in the area. Development of the property will require a Traffic Impact Study, or a waiver of Traffic Impact Study from the City of Bozeman Engineering Department. G. Does the new zoning promote compatible urban growth? How? Yes. The new zoning promotes growth directly adjacent to the city boundary, and a principal arterial street. The location of this development prevents islands of disconnected growth. H. Does the new zoning promote the character of the district? How? 304 UNIVERSITY CROSSING ANNEXATION AND INITIAL ZONING APPLICATION April, 2021 #210228 ANNEXATION AND INITIAL ZONING Yes. The new B-2 zoning aligns with the character of the district, which includes areas also zoned B-2. I. Does the new zoning address the affected area’s peculiar suitability for particular uses? How? Yes. The B-2 zoning of the property perpetuates the suitability of the area for particular uses. J. Was the new zoning adopted with a view to conserving the values of buildings? How? Yes. There are currently no buildings on the property. Required setbacks for development of the property will be met. K. Does the new zoning encourage the most appropriate use of land throughout the jurisdictional area? Yes, the new zoning encourages the most appropriate use of land as it matches the existing growth plan. 305 306 307 308 ANNX ANNEXATION APPLICATION CHECKLIST ANNEXATION APPLICATION PROCEDURE Annexation is the process of expanding the boundaries of a city. This handout provides details for the application requirements to submit to annex a property. The following goals and policies are hereby established for the consideration of annexations to the City of Bozeman in Resolution No. 5076. Ensure that your narrative acknowledges them in your submittal. SECTION ONE: GOALS 1. The City of Bozeman encourages annexations of land contiguous to the City. 2. The City encourages all areas that are totally surrounded by the City to annex. 3. The City encourages all properties currently contracting with the City for City services such as water, sanitary sewer, and/or fire protection to annex. 4. The City of Bozeman requires annexation of all land proposed for development lying within the existing and planned service area of the municipal water and sewer systems as depicted in their respective facility plans, any land proposed for development that proposes to utilize municipal water or sewer systems. 5. The City encourages annexations within the urban area identified on the future land use map in the current Bozeman Growth Policy. 6. The City of Bozeman encourages annexations to make the City boundaries more regular rather than creating irregular extensions which leave unannexed gaps between annexed areas or islands of annexed or unannexed land. 7. The City of Bozeman encourages annexations which will enhance the existing traffic circulation system or provide for circulation systems that do not exist at the present time. 8. The City prefers annexation of parcels of land larger than five (5) acres in size, but will allow annexation of smaller parcels if factors such as topographic limitations, sanitary disposal needs, fire access, maintenance of public facilities, etc., justify a smaller annexation. 9. The City seeks to obtain water rights adequate for future development of the property with annexation. 10. The City of Bozeman encourages annexations for City provision of clean treated water and sanitary sewer. SECTION TWO: POLICIES 1. Annexations must include dedication of all easements for rights-of-way for collector and arterial streets, adjacent local streets, public water, sanitary sewer, or storm or sewer mains, and Class I public trails not within the right of way for arterial or collector streets. Annexations must also include waivers of right to protest the creation of special or improvement districts necessary to provide the essential services for future development of the City. 2. Issues pertaining to master planning and zoning must be addressed prior to or in conjunction with the application for annexation. 3. The application for annexation must be in conformance with the current Bozeman Growth Policy. If a Growth Policy Amendment is necessary to accommodate anticipated uses, the amendment process must be initiated by the property owner and completed prior to any action for approval of the application for annexation. 4. Initial zoning classification of the property to be annexed will be determined by the City Commission, in compliance with the Bozeman Growth Policy and upon a recommendation of the City Zoning Commission, simultaneously with review of the annexation petition. 5. The applicant must indicate their preferred zoning classification as part of the annexation petition. 6. Fees for annexation processing will be established by the City Commission. 7. It is the policy of the City that annexations will not be approved where unpaved county roads will be the most commonly used route to gain access to the property unless the landowner proposes a method to provide for construction of the road to the City’s street standards. 8. Prior to annexation of property, the City will require the property owner to acquire adequate and useable water rights, or an appropriate fee in lieu thereof, in accordance with Section 38.410.130 of the municipal code, as amended. 9. Infrastructure and emergency services for an area proposed for annexation will be reviewed for the health, safety and welfare of the public and conformance with the City’s adopted facility plans. If the City determines adequate services cannot be provided to ensure public health, safety and welfare, the City may require the property owner to provide a written plan for accommodation of these services, or the City may reject the petition for annexation. Additionally, the parcel to be annexed may only be provided sanitary sewer service via the applicable drainage basin defined in the City Wastewater Collection Facilities Plan. Annexation Application Checklist Page 1 of 3 Revision Date: April 2021 309 ANNEXATION APPLICATION CHECKLIST ANNEXATION APPLICATION CHECKLIST 1. Complete and signed development review application form A1. 2. All materials must be a JPEG or PDF. No individual files will be accepted that are larger than 20 MB. Files that are larger must be broken down into smaller files. Ensure that layers are flattened. 3. The digital copies must be separated into two categories: Documents and Drawings. a. The Documents folder should include items such as application forms, narrative, response to City comments, supplemental documents, technical reports, easements, legal documents, etc. b. The Drawings folder should include items such as site plans, civil plans, landscape plans, photometric plans, elevations, etc. All drawing files must be drawn and formatted for a 24” x 36” sheet file or 11” x 17” sheet file. Plan pages shall be properly oriented in landscape mode. 4. Naming protocol. Each individual document or drawing sheet must have a proper name and date. Ensure that each file name isn’t too long, doesn’t have any spaces (use capital letters to delimit words), and includes the name of the item. a. Documents should be labeled as such: CONRApplication_05232020, Narrative_05232020 or StormwaterReport_05232020 b. Drawing sheets are required to be listed individually and in sequential order. 5. Project narrative describing the project type and proposed use scope. Ensure to include questions asked above in the narrative. 6. Complete and signed property adjoiners certificate form N1 and materials. 10. The City may require annexation of any contiguous property for which city services are requested or for which city services are currently being provided. In addition, any person, firm, or corporation receiving water or sewer service outside of the City limits is required as a condition of initiating or continuing such service, to consent to annexation of the property serviced by the City. The City Manager may enter into an agreement with a property owner for connection to the City’s sanitary sewer or water system in an emergency conditioned upon the submittal by the property owner of a petition for annexation and filing of a notice of consent to annexation with the Gallatin County Clerk and Recorder’s Office. The contract for connection to city sewer and/or water must require the property owner to annex or consent to disconnection of the services. Connection for purposes of obtaining City sewer services in an emergency requires, when feasible as determined by the City, the connection to City water services. 11. The annexation application shall be accompanied by mapping to meet the requirements of the Director of Public Works. Where an area to be annexed can be entirely described by reference to a certificate of survey or subdivision plat on file with the Gallatin County Clerk and Recorder. 12. The mapping may be waived by the Director of Public Works. 13. The City will assess system development/impact fees in accordance with Montana law and Chapter 2, Article 6, Division 9, Bozeman Municipal Code. 14. Public notice requirements: Notice for annexation of property must be coordinated with the required notice for the zone map amendment required with all annexation. The zone map amendment notice must contain the materials required by 38.220.410, BMC. 15. Annexation agreements must be executed and returned to the City within 60 days of distribution of the annexation agreement by the City, unless another time is specifically identified by the City Commission. 16. When possible, the use of Part 46 annexations is preferred. 17. Where a road improvement district has been created, the annexation does not repeal the creation of the district. The City will not assume operations of the district until the entirety of the district has been annexed. Any funds held in trust for the district will be used to benefit the district after transfer to the City. Inclusion within a district does not lessen the obligation to participate in general city programs that address the same subject. 18. The City will notify the Gallatin County Planning Department and Fire District providing service to the area of applications for annexation. 19. The City will require connection to and use of all City services upon development of annexed properties. The City may establish a fixed time frame for connection to municipal utilities. Upon development, unless otherwise approved by the City, septic systems must be properly abandoned and the development connected to the City sanitary sewer system. Upon development, unless otherwise approved by the City, water wells on the subject property may be used for irrigation, but any potable uses must be supplied from the City water distribution system and any wells disconnected from structures. The property owner must contact the City Water and Sewer Superintendent to verify disconnects of wells and septic systems. Annexation Application Checklist Page 2 of 3 Revision Date: April 2021 310 ANNEXATION APPLICATION CHECKLIST APPLICATION FEE For most current application fee, see Schedule of Community Development fees. Fees are typically adjusted in January. CONTACT US Alfred M. Stiff Professional Building 20 East Olive Street PO Box 1230 Bozeman, MT 59715 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net/planning CERTIFICATION AND SIGNATURES I (We), the undersigned, hereby certify that the information contained in this application is true and correct to the best of my (our) knowledge. _______________________________________________________________________________ ________________ Property Owner’s Signature(s) Date State of _____________________________ County of ____________________________ On this ______________ date of _________________, 20__, before me, a Notary Public and the State of _______________, personally appeared ___________________________________________________________________, known to me to be the person(s) whose name(s) is(are) subscribed to the above instrument and acknowledge to me that he/she/they executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the date and year first above written. _______________________________________________________ Notary Public for State of __________________________________ Residing at ______________________________________________ My Commission Expires ___________________________________ ANNEXATION MAP REQUIREMENTS 1. Include an exhibit of the property to be modified. Provide existing County zoning designation and the proposed zoning designation clearly labeled. The exhibit should include the legal limits of the property and size in square feet and acreage. If adjacent to a right-of-way, the annexation must include the full width of the right-of-way per 7-2-4211 MCA. 2. Scale not greater than 1 inch to 20 feet nor less than 1 inch to 100 feet. 3. Scale, north arrow and date of preparation. 4. Subject property well defined. 5. Land use pattern of surrounding area. 6. Existing zoning of the surrounding property. 7. Boundaries of proposed zoning (if more than one designation being requested) well defined. 8. Proximity of all existing and proposed water and sewer mains and extension. 9. Location of all existing structures on the subject property. 10. Adjacent streets and street right-of-ways. 11. Water bodies and wetlands. REQUIRED FORMS A1, ANNX, ZMA, N1, GPA (if changing growth policy designation) Annexation Application Checklist Page 3 of 3 Revision Date: April 2021 311 ZMA ZONE MAP AMENDMENT CHECKLIST ZONE MAP AMENDMENT APPLICATION PROCEDURE A Zone Map Amendment (ZMA), requests a change of zoning to an existing parcel or as part of an annexation to a property that requires a zoning designation. If the rezone is part of an annexation, this handout provides details for the application requirements required to rezone a property. ZMA APPLICATION CHECKLIST 1. Complete and signed development review application form A1. 2. All materials must be a JPEG or PDF. No individual files will be accepted that are larger than 20 MB. Files that are larger must be broken down into smaller files. Ensure that layers are flattened. 3. The digital copies must be separated into two categories: Documents and Plans. a. The Documents folder should include items such as application forms, narrative, response to City comments, supplemental documents, technical reports, easements, legal documents, etc. b. The Plans folder should include items such as site plans, civil plans, landscape plans, photometric plans, elevations, etc. All drawing files must be drawn and formatted for a 24” x 36” sheet file or 11” x 17” sheet file. Plan pages shall be properly oriented in landscape mode. 4. Naming protocol. Each individual document or plan sheet must have a proper name and date. For example a document might be labeled “CONR application 04-01-2021”. 5. Complete and signed property adjoiners certificate form N1 and materials. 6. Project narrative including a detailed response to the following: a. Is the new zoning designed in accordance with the growth policy? How? b. Will the new zoning secure safety from fire and other dangers? How? c. Will the new zoning promote public health, safety and welfare? How? d. Will the new zoning facilitate the adequate provisions of transportation, water, sewage, schools, parks and other public requirements? How? e. Will the new zoning provide reasonable provision of adequate light and air? How? f. Will the new zoning have an effect on motorize and non-motorized transportation systems? How? g. Does the new zoning promote compatible urban growth? How? h. Does the new zoning promote the character of the district? How? i. Does the new zoning address the affected area’s peculiar suitability for particular uses? How? j. Was the new zoning adopted with a view of conserving the values of buildings? How? k. How does the new zoning encourage the most appropriate use of land throughout the jurisdictional area? Zone Map Amendment Page 1 of 2 Revision Date: April 2021 ZMA DISCLAIMER As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. A zone map amendment must be in accordance with the growth policy (criteria A) and be designed to secure safety from fire and other dangers (criteria B), promote public health, public safety, and general welfare (criteria C), and facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements (criteria D). Therefore, to approve a zone map amendment the Commission must find Criteria A-D are met. In addition, the Commission must also consider criteria E-K, and may find the zone map amendment to be positive, neutral, or negative with regards to these criteria. To approve the zone map amendment, the Commission must find the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. In determining whether the criteria are met, Staff considers the entire body of regulations for land development. Standards which prevent or mitigated negative impacts are incorporated throughout the entire municipal code but are principally in Chapter 38, Unified Development Code. The information, or argument, is necessary to make a decision. Statements supporting the application must identify goals and objectives of the Growth Policy advanced by the proposed change. Conclusory statements are not arguments for a proposed change. Your argument is critical to the success or failure of your application. Please refer to example findings to help inform your analysis. Be aware your application will be analyzed against spot zoning and is a primary component of the public review. You may wish to comment to ensure your request is successful and defensible. 312 ZMA APPLICATION CHECKLIST CERTIFICATION AND SIGNATURES I (We), the undersigned, hereby certify that the information contained in this application is true and correct to the best of my (our) knowledge. _______________________________________________________________________________ ________________ Property Owner’s Signature(s) Date State of _____________________________ County of ____________________________ On this ______________ date of _________________, 20__, before me, a Notary Public and the State of _______________, personally appeared ___________________________________________________________________, known to me to be the person(s) whose name(s) is(are) subscribed to the above instrument and acknowledge to me that he/she/they executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the date and year first above written. _______________________________________________________ Notary Public for State of __________________________________ Residing at ______________________________________________ My Commission Expires ___________________________________ APPLICATION FEE For most current application fee, see Schedule of Community Development fees. Fees are typically adjusted in January. CONTACT US Alfred M. Stiff Professional Building 20 East Olive Street PO Box 1230 Bozeman, MT 59715 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net/planning REQUIRED FORMS A1,N1, ANNX (if property is being annexed into City) Zone Map Amendment Page 2 of 2 Revision Date: April 2021 ZMA MAP REQUIREMENTS 1. Include an exhibit of the property to be modified. Provide existing zoning designation and the proposed zoning designation clearly labeled. The exhibit should include the legal limits of the property and size in square feet and acreage. If adjacent to a right-of-way, the zoning should extend to the centerline of the right of way. 2. Scale not greater than 1 inch to 20 feet nor less than 1 inch to 100 feet. 3. Scale, north arrow and date of preparation. 4. Subject property well defined. 5. Existing zoning of the surrounding property, including County zoned properties if applicable. 6. Boundaries of proposed zoning (if more than one designation being requested) well defined. 7. Proximity of all existing and proposed water and sewer mains and extension. 8. Location of all existing structures on the subject property. 9. Adjacent streets and street right-of-ways. 10. Water bodies and wetlands. 313 314 315 RETURN RECORDED DEED TO: Bozeman City Clerk PO Box 1231 Bozeman, MT 59771-1231 UTILITY EASEMENT Steven R Aaker, of 15658 Deer Mountain Circle, Broomfield, CO 80023, the GRANTOR, in consideration of $1.00 and for other good and valuable consideration, receipt of which is hereby acknowledged, grants to The City of Bozeman, a municipal corporation of the State of Montana, with offices at 121 North Rouse Avenue, Bozeman, Montana 59715, GRANTEE, its successors and assigns, a perpetual utility easement for the use of each and every person, firm or corporation, whether public or private, providing or offering to provide telephone, electric power, gas, internet, cable television or other similar utility or service, the right to the joint use of an easement for the construction, maintenance, repair, and removal of their lines and other facilities, in, through and across a strip of land 10 feet wide situated in Gallatin County, Montana, to be located on the following described real property: Lot 2A, Minor Subdivision No. 191-B, and located in the Southeast Quarter of Section 14, T. 2 S., R. 5 E. of P.M.M., Gallatin County, Montana. The easement is more particularly shown and dimensioned on the attached Exhibit A, which by this reference is made a part of this document. The GRANTOR states that it possesses the real property described above and that it has a lawful right to grant an easement thereon. The GRANTOR further agrees that the GRANTEE may peaceably hold and enjoy the rights and privileges herein granted without any interruption by the GRANTOR. 316 The terms, covenants, and provisions of this easement shall extend to and be binding upon the heirs, executors, administrators, personal representatives, successors, and assigns of the parties hereto. DATED this ______ day of _____________________, 2021. GRANTOR: __________________________________ Steven R. Aaker STATE OF COLORADO ) ) ss. County of ____________ ) This instrument was signed or acknowledged before me this ____ day of __________________, 2021, by Steven R. Aaker. (SEAL) ____________________________________ Notary Public for the State of Colorado Printed Name: ________________________ Residing at My Commission Expires _____/ /20 317 DATED this ______ day of _____________________, 2021 ACCEPTED - CITY OF BOZEMAN _____________________________________ By: Jeff Mihelich, its City Manager ATTEST: By: Mike Maas, its City Clerk STATE OF MONTANA ) )ss. County of Gallatin ) On this ________ day of ___________________, 2021, before me, a Notary Public for the State of Montana, personally appeared JEFF MIHELICH and MIKE MAAS, known to me to be the City Manager and City Clerk, respectively, of the City of Bozeman and the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana Printed Name: ________________________ Residing at My Commission Expires / /20___ G:\C&H\21\210228\Annexation And Zoning\Easements And Waivers\10 Ft. Wide Utility Easement.Doc 318 319 RETURN RECORDED DEED TO: Bozeman City Clerk PO Box 1231 Bozeman, MT 59771-1231 PUBLIC STREET AND UTILITY EASEMENT Steven R Aaker, 15658 Deer Mountain Circle, Broomfield, CO 80023, the GRANTOR, in consideration of one dollar and other good and valuable consideration, receipt of which is acknowledged, does hereby grant to City of Bozeman, 121 North Rouse Avenue, P.O. Box 1230, Bozeman, MT 59771, a Municipal Corporation of the State of Montana, GRANTEE, its successors and assigns, a perpetual street and utility easement for the use of the public, in, through, over and across a strip of land 15.00 feet wide situated in Gallatin County, Montana, to be located on the following described real property: Lot 2A, Minor Subdivision No. 191-B, and located in the Southeast Quarter of Section 14, T. 2 S., R. 5 E. of P.M.M., City of Bozeman, Gallatin County, Montana. The easement is more particularly shown and dimensioned on the attached Exhibit A, which by this reference is made a part of this document. The GRANTOR states that he possesses the real property described above and that he has a lawful right to grant an easement thereon. The GRANTOR further agrees that the GRANTEE may peaceably hold and enjoy the rights and privileges herein granted without any interruption by the GRANTOR. The terms, covenants, and provisions of this easement shall extend to and be binding upon the heirs, executors, administrators, personal representatives, successors, and assigns of the parties 320 hereto. DATED this ______ day of _____________________, 2021. GRANTOR: Steven R. Aaker __________________________________ Steven R. Aaker STATE OF COLORADO ) ) ss. County of ____________ ) This instrument was signed or acknowledged before me this ____ day of __________________, 2021, by Steven R. Aaker. (SEAL) ____________________________________ Notary Public for the State of Colorado Printed Name: ________________________ Residing at My Commission Expires _____/ /20 321 DATED this ______ day of _____________________, 2021. ACCEPTED - CITY OF BOZEMAN _____________________________________ By: Jeff Mihelich, its City Manager ATTEST: By: Mike Maas, its City Clerk STATE OF MONTANA ) )ss. County of Gallatin ) On this ________ day of ___________________, 202__, before me, a Notary Public for the State of Montana, personally appeared JEFF MIHELICH and MIKE MAAS, known to me to be the City Manager and City Clerk, respectively, of the City of Bozeman and the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana Printed Name: ________________________ Residing at My Commission Expires / /20___ G:\C&H\21\210228\Annexation And Zoning\Easements And Waivers\15 Ft. Wide Public Road And Utility Easement.Doc 322 323 Page 1 of 2 Adjoining Property Owners: MINOR SUB 191, S14, T02 S, R05 E, Lot 2A, ACRES 97.388 GENESIS BUSINESS PARK OWNERS ASSOCIATION PO BOX 472 BOZEMAN, MT 59771-0472 GENESIS BUSINESS PARK SUB, S23, T02 S, R05 E, Lot 1, Lots 8A, 10A, 12A, PLAT J-284 CONTIGUOUS GRACE BIBLE CHURCH LIMITED OF BOZEMAN 3625 S 19TH AVE BOZEMAN, MT 59718-9108 S23, T02 S, R05 E, C.O.S. 1969, TRACT 1 NE4 17.01AC CONTIGUOUS ANNEX OF BOZEMAN LLC 409 MASSACHUSETTS AVE STE 300 INDIANAPOLIS, IN 46204-1599 KAGY CROSSROADS SUB, S14, T02 S, R05 E, BLOCK 1, Lot 1, ACRES 2.5, PLAT J-328-A CONTIGUOUS STOCKMAN BANK OF MONTANA PO BOX 250 MILES CITY, MT 59301-0250 KAGY CROSSROADS SUB, S14, T02 S, R05 E, BLOCK 1, Lot 4 - 5, ACRES 2.242, PLAT J-328-A LESS HWY RIGHT OF WAY CONTIGUOUS KAGY CROSSROADS LLC PO BOX 10504 BOZEMAN, MT 59719-0504 KAGY CROSSROADS SUB, S14, T02 S, R05 E, BLOCK 3, Lot 1, ACRES 2.788, PLAT J-328-A CONTIGUOUS 19TH CAPITAL GROUP LLC 19 LARIAT LOOP BOZEMAN, MT 59715-9200 MINOR SUB 503, S14, T02 S, R05 E, Lots 1, 2, & 3 CONTIGUOUS SPANISH PEAK APARTMENTS LLC 3424 E US HIGHWAY 12 HELENA, MT 59601-9708 KAGY CROSSROADS SUB, S14, T02 S, R05 E, BLOCK 2, Lot 3, ACRES 1.868, PLAT J-328-A CONTIGUOUS RTR HOLDINGS II LLC 22 TURTLE ROCK CT TIBURON, CA 94920-1300 SOUTH UNIVERSITY DISTRICT PH 2 MINOR SUB, S24, T02 S, R05 E, Lot 2, ACRES 74.87, PLAT J-605 NOT CONTIGUOUS ALLIED BUILDING LLC 32 DISCOVERY DR BOZEMAN, MT 59718-6958 GENESIS BUSINESS PARK SUB, S23, T02 S, R05 E, Lot 2, ACRES 0.9, PLAT J-284 NOT CONTIGUOUS SPIRE HOLDINGS LLC 626 E DAVIS ST BOZEMAN, MT 59715-3716 GENESIS BUSINESS PARK SUB, S23, T02 S, R05 E, Lot 18, (AGGREGATE LOTS 18 & 19 PLATS J- 284B & J-284) CONTIGUOUS BENNETT MARSHALL & C LUZANN 5532 STUCKY RD BOZEMAN, MT 59718-9036 S23, T02 S, R05 E, C.O.S. 2725, TRACT 2 N2 23.80AC, Parcel 1&2 CONTIGUOUS RAFFETY MILDRED M TRUST 901 LYNN RD HELENA, MT 59602-7027 S23, T02 S, R05 E, NE4NE4NW4 10.1AC LESS R W CONTIGUOUS MONTANA STATE UNIVERSITY CULBERTSON HALL BOZEMAN, MT 59717 S14, T02 S, R05 E, C.O.S. 1245, PARCEL B, ACRES 21.416, LESS COS 1245A and S14, T02 S, R05 E, C.O.S. 2729, ACRES 82.614, EAST POR TRACT B IN SD 7C-08(RGG62458 IN SD 7R-41) CONTIGUOUS KAGY VILLAGE CONDO PH 1 MASTER (SEE OWNERS BELOW) KAGY VILLAGE CONDO, S14, T02 S, R05 E, KAGY CROSSROADS SUB LOTS 1, 2 & 3 BLK 2 PLAT J- 328 PLUS OPEN SPACE CONTIGUOUS RUNNERS, LLC PO BOX 5005 BOZEMAN, MT 59717-5005 KAGY VILLAGE CONDO, S14, T02 S, R05 E, BUILDING A, UNIT A1 MONTANA MOVEMENT ARTS CENTER LLC PO BOX 786 BOZEMAN, MT 59771-0786 KAGY VILLAGE CONDO, S14, T02 S, R05 E, BUILDING A, UNIT A2-1 D.J. WOODY PROPERTIES LLC 9005 SYPES CANYON ROAD BOZEMAN, MT 59715 KAGY VILLAGE CONDO, S14, T02 S, R05 E, BUILDING A, UNIT A2-2 & A3 324 Page 2 of 2 SHADETREE MT LLC 88 SADDLE CREEK RD BOZEMAN, MT 59715-8101 KAGY VILLAGE CONDO, S14, T02 S, R05 E, BUILDING B, UNIT B1, B2, & B3 WENDELL DANIEL E & EVA M. 2251 W KAGY BLVD STE C1 BOZEMAN, MT 59718-5939 KAGY VILLAGE CONDO, S14, T02 S, R05 E, BUILDING C, UNIT C1 PREGNANCY CARING CENTER OF GALLATIN VALLEY - ZOECARE 2251 W KAGY BLVD UNIT C2 BOZEMAN, MT 59718-5939 KAGY VILLAGE CONDO, S14, T02 S, R05 E, BUILDING C, UNIT C2 400 MARION INC PO BOX 206 BOZEMAN, MT 59771-0206 KAGY VILLAGE CONDO, S14, T02 S, R05 E, UNIT D1 KROPP KAREN L REV LIV TR AGR DTD 12/6/1 KROPP KAREN L TRUSTEE 134 E TOBIANO TRL BELGRADE, MT 59714-9736 KAGY VILLAGE CONDO, S14, T02 S, R05 E, UNIT F1 & F2 G:\c&h\21\210228\Annexation and Zoning\Annexation and Zoning Maps\City Adjoiners - 210228 - MINOR SUB 191.doc 325 326 327 328 Memorandum REPORT TO:City Commission FROM:Chris Saunders, Community Development Manager Martin Matsen, Community Development Director SUBJECT:Stockyard Properties Zone Map Amendment, Application 21102 Amending Zoning from R-4 and B-1 to REMU and B2-M on Approximately 12.2 Acres on the West Side of the Intersection of Story Mill Road and Griffin Drive MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Zoning Commission Recommended Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21102 and move to recommend approval of the Stockyard Properties Zone Map Amendment, with contingencies required to complete the application processing. STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND:Change in zoning for an infill site. See attached staff report for more details. UNRESOLVED ISSUES:None ALTERNATIVES:After making alternate findings to the review criteria recommend denial of the amendment. FISCAL EFFECTS:None Attachments: 21102 Stockyard Properties ZMA Staff Report CC.pdf 21102_Application_Materials.pdf Report compiled on: July 14, 2021 329 Page 1 of 30 21102 Staff Report for the Stockyard Properties Zone Map Amendment Public Hearing: Zoning Commission meeting: July 12, 2021 City Commission meeting: August 3, 2021 Project Description: Amendment of the City Zoning Map to rezone 3.11 acres from B-1 (Neighborhood Business District) and R-4 (Residential High Density District) to REMU (Residential Emphasis Mixed-Use District), and to rezone 12.17 acres from B-1 and R-4 to B-2M (Community Business District – Mixed) including adjacent roadway and utility easements. Project Location: North and south of East Griffin Drive and west of Story Mill Road. Legal Descriptions: A tract of land encompassing portions of Tract 1 of COS 1147A, all of Tract K, and portions of Tract 23A of COS 2547, located in the SE ¼ of Section 31, Township 1 South, Range 6 East, and a portion of Tract 23A of COS 2547, located in the NE ¼ of Section 6, Township 2 South, Range 6 East, and a tract of land encompassing a portion of Tract 1 and all of Tract 2 of COS 1147A, located within the SE ¼ of Section 31, Township 1 South, Range 6 East, and all of Tract 3 of COS 1147A and a portion of the remainder Tract 4 of COS 1147B, located within the NE ¼ of Section 6, Township 2 South, Range 6 East, P.M.M., City of Bozeman, Gallatin County, Montana. Recommendation: Meets standards for approval with terms and contingencies. Zoning Commission Zoning Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21102 and move to recommend approval of the Stockyard Properties Zone Map Amendment, with contingencies required to complete the application processing. Recommended City Commission Motion: Having reviewed and considered the staff report, application materials, public comment, recommendation of the Zoning Commission, and all information presented, I hereby adopt the findings presented in the staff report for application 21102 and move to approve the Stockyard Properties Zone Map Amendment, with contingencies required to complete the application processing. Report: July 20, 2021 Staff Contacts: Chris Saunders, Community Development Manager Lance Lehigh – Engineer III Agenda Item Type: Action - Legislative 330 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 2 of 30 EXECUTIVE SUMMARY This report is based on the application materials submitted and public comment received to date. Unresolved Issues None identified at this time. Project Summary Ryan Krueger of Intrinsik Architecture, representing applicants Christine and Kevin Huyser of Wake Up Inc., seeks to amend the zoning map designation on property owned by Wake Up Inc. The zone map amendment would change the zoning of 1.23 acres of B-1 (Neighborhood Business District) and 1.88 of R-4 (Residential High Density District) to REMU (Residential Emphasis Mixed-Use District) and 1.65 acres of B-1 and 10.52 acres of R-4 to B-2M (Community Business District – Mixed), for a total zone map amendment area of 15.28 acres. The zone changes include the public road rights-of-ways/easements for Story Mill Road and East Griffin Drive. The subject property is located along the west side of side of Story Mill Road at its intersection with East Griffin Drive, and includes portions of East Griffin Drive and land on the north and south sides of East Griffin Drive. Zoning Commission The Zoning Commission considered this item on July 12, 2021. After conducting their public hearing they recommended approval of the application on a vote of 4-0. The video of the public hearing is available at https://bozeman.granicus.com/player/clip/112?view_id=1&redirect=true. Alternatives 1. Approve the application and associated resolution and ordinance; 2. Approve the application with modifications to the recommended zoning; 3. Deny the application based on the Commission’s findings of non-compliance with the applicable criteria contained within the staff report; or 4. Open and continue the public hearing on the application, with specific direction to staff or the applicant to supply additional information or to address specific items. 331 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 3 of 30 TABLE OF CONTENTS EXECUTIVE SUMMARY ...................................................................................................... 2 Unresolved Issues ............................................................................................................... 2 Project Summary ................................................................................................................. 2 Zoning Commission ............................................................................................................ 2 Alternatives ......................................................................................................................... 2 SECTION 1 - MAP SERIES .................................................................................................... 4 SECTION 2 - RECOMMENDED CONTINGENCIES OF ZONE MAP AMENDMENT... 10 SECTION 3 - RECOMMENDATION AND FUTURE ACTIONS ...................................... 10 Zone Map Amendment ...................................................... 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SECTION 4 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS ........... 11 Spot Zoning Criteria ......................................................................................................... 21 PROTEST NOTICE FOR ZONING AMENDMENTS ......................................................... 23 APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND .............. 23 APPENDIX B - NOTICING AND PUBLIC COMMENT .................................................... 24 APPENDIX C - PROJECT GROWTH POLICY AND PROPOSED ZONING ................... 25 APPENDIX D - OWNER INFORMATION AND REVIEWING STAFF............................ 30 FISCAL EFFECTS ................................................................................................................. 30 ATTACHMENTS ................................................................................................................... 30 332 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 4 of 30 SECTION 1 - MAP SERIES Map 1: Project Vicinity Map with ½ mile radius circle on airial photo 333 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 5 of 30 Map 2: Project Vicinity Map – with designations from Bozeman Community Plan 2020 Future Land Use Map 334 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 6 of 30 Map 3: Project Vicinity Map with Existing Zoning designations 335 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 7 of 30 Map 4: Project Vicinity Map with Proposed Zoning designations 336 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 8 of 30 Map 5: Survey map for the proposed Zone Map Amendment showing existing parcels 337 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 9 of 30 Map 6: Existing Conditions Plan map of the ‘Stockyard Site’, showing existing buildings and other features at the site 338 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 10 of 30 SECTION 2 - RECOMMENDED CONTINGENCIES OF ZONE MAP AMENDMENT Please note that these contingencies are necessary for the City to complete the process of the proposed amendment. These contingencies only apply in the event that the related annexation request has previously been approved. Recommended Contingencies of Approval: 1. That all documents and exhibits necessary to establish an initial municipal zoning designation shall be identified as the “Stockyard Properties Zone Map Amendment.” All required documents must be returned to the City within 60 days of the City Commission action to annex the property or the preliminary approval shall be null and void. 2. That the applicant must submit a Zone Amendment map, titled “Stockyard Properties Zone Map Amendment”. The map must be supplied as a PDF. This map must be acceptable to the City Engineer’s Office, and must be submitted within 60 days of the action to approve the zone map amendment. Said map shall contain a metes and bounds legal description of the perimeter of the subject property including adjacent right-of-ways or street easements, and total acreage of the property to be rezoned; unless the property to be rezoned can be entirely described by reference to existing platted properties or certificates of survey. 3. The Ordinance for the Zone Map Amendment shall not be drafted until the applicant provides an editable metes and bounds legal description prepared by a licensed Montana surveyor. SECTION 3 - RECOMMENDATIONS AND FUTURE ACTIONS Having considered the criteria established for a zone map amendment, the Staff recommends approval as submitted. The Development Review Committee (DRC) considered the amendment. The DRC did not identify any infrastructure or regulatory constraints that would impede the approval of the application. The Zoning Commission held a public hearing on this ZMA on July 12, 2021 and recommended approval to the Commission on the Zone Map amendment. The City Commission will hold a public hearing on the zone map amendment on August 3, 2021. The meeting will be held using WebEx, an electronic meeting system. The instructions for connecting to WebEx will be included on the agenda available at the City’s website, www.bozeman.net. The meeting will begin at 6 p.m. 339 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 11 of 30 SECTION 4 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for plan approval under this title, the advisory boards and City Commission must consider the following criteria (letters A-K). As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. A zone map amendment must be in accordance with the growth policy (criteria A) and be designed to secure safety from fire and other dangers (criteria B), promote public health, public safety, and general welfare (criteria C), and facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements (criteria D). Therefore, to approve a zone map amendment the Commission must find Criteria A-D are met. In addition, the Commission must also consider criteria E-K, and may find the zone map amendment to be positive, neutral, or negative with regards to these criteria. To approve the zone map amendment, the Commission must find the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. In determining whether the criteria are met, Staff considers the entire body of plans and regulations for land development. Standards which prevent or mitigated negative impacts are incorporated throughout the entire municipal code but are principally in Chapter 38, Unified Development Code. References in the text of this report to Articles, Divisions, or in the form XX.XXX.XXX are to the Bozeman Municipal Code. Section 76-2-304, MCA (Zoning) Criteria A. Be in accordance with a growth policy. Criterion met. The application was initially submitted on March 9, 2021. On November 17, 2020, the City Commission adopted a new growth policy, the Bozeman Community Plan 2020, (BCP 2020) which replaced the prior growth policy. The following review examines the growth policy now in place and all references are to that document. The BCP 2020, Chapter 5, p. 73-78, in the section titled Review Criteria For Zoning Amendments And Their Application, discusses how the state required zoning criteria in 76- 2-304 MCA are applied locally. These criteria are presented and analyzed in this section of the report. Application of the criteria varies depending on whether an amendment is for the zoning map or for the text of Chapter 38, BMC. The first criterion for a zoning amendment is to be accordance with a growth policy. Future Land Use Map The proposed amendment is a change to the zoning map. Therefore, it is necessary to analyze compliance with the future land use map. Chapter 3 of the BCP 2020 addresses the future 340 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 12 of 30 land use map. The introduction to Chapter 3 discusses the importance of the chapter. Following are some excerpts. “Future land use is the community’s fundamental building block. It is an illustration of the City’s desired outcome to accommodate the complex and diverse needs of its residents.” “The land use map sets generalized expectations for what goes where in the community. Each category has its own descriptions. Understanding the future land use map is not possible without understanding the category descriptions.” As shown on the maps in Section 1, on the excerpt of the current future land use map, the property is designated as Residential Mixed Use in the northwestern portions of the property north of East Griffin Drive and Community Commercial Mixed Use south of East Griffin Drive and the eastern portions of the property north of East Griffin Drive. It is also noteworthy that the property is adjacent on multiple sides to the Story Mill Community Park and the future land use map’s “Parks and Open Lands” designation. The Residential Mixed Use designation description, applicable for the northwestern portion of the site proposed for REMU zoning, reads: “This category promotes neighborhoods substantially dominated by housing, yet integrated with small-scale commercial and civic uses. The housing can include single- attached and small single-detached dwellings, apartments, and live-work units. if buildings include ground floor commercial uses, residences should be located on upper floor. Variation in building mass, height, and other design characteristics should contribute to a complete and interesting streetscape. Secondary supporting uses, such as retail, office, and civic uses, are permitted on the ground floor. All uses should complement existing and planned residential uses. Non- residential uses are expected to be pedestrian oriented and emphasize the human scale with modulation in larger structures. Stand alone, large, non-residential uses are discouraged. Non-residential spaces should provide an interesting pedestrian experience with quality urban design for buildings, sites, and open spaces. This category is appropriate near commercial centers. Larger areas should be well served by multimodal transportation routes. Multi-unit, higher density, urban development is expected. Any development within this category should have a well-integrated transportation and open space network that encourages pedestrian activity and provides ready-access within and adjacent development.” The Community Commercial Mixed Use designation description, applicable south of East Griffin Drive and the eastern portions of the property north of East Griffin Drive, proposed for B-2M zoning, reads: 341 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 13 of 30 “The Community Commercial Mixed Use category promotes commercial areas necessary for economic health and vibrancy. This includes professional and personal services, retail, education, health services, offices, public administration, and tourism establishments. Density is expected to be higher than it is currently in most commercial areas in Bozeman and should include multi-story buildings. Residences on upper floors, in appropriate circumstances, are encouraged. The urban character expected in this designation includes urban streetscapes, plazas, outdoor seating, public art, and hardscaped open space and park amenities. High density residential areas are expected in close proximity. Developments in this land use area should be located on one or two quadrants of intersections of the arterial and/or collector streets and integrated with transit and non- automotive routes. Due to past development patterns, there are also areas along major streets where this category is organized as a corridor rather than a center. Although a broad range of uses may be appropriate in both types of locations, the size and scale is to be smaller within the local service areas. Building and site designs made to support easy reuse of the building and site over time is important. Mixed use areas should be developed in an integrated, pedestrian friendly manner and should not be overly dominated by any single use. Higher intensity uses are encouraged in the core of the area or adjacent to significant streets and intersections. Building height or other methods of transition may be required for compatibility with adjacent development. Smaller neighborhood scale areas are intended to provide local service to an area of approximately one half-mile to one mile radius as well as passersby. These smaller centers support and help give identity to neighborhoods by providing a visible and distinct focal point as well as employment and services. Densities of nearby homes needed to support this scale are an average of 14 to 22 dwellings per net acre.” The entire future land use map is available through the Community Development Viewer on the City’s website. The correlation between the future land use map of the growth policy and the zoning districts is presented in Table 4 of the Bozeman Community Plan 2020. As shown in the following excerpts from Table 4, the proposed REMU district is an implementing district of the Residential Mixed Use category, and the proposed B-2M district is an implementing district of the Community Commercial Mixed Use category. The full table is provided in Appendix C. 342 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 14 of 30 Based on the proposed zoning districts’ proper correlations with the future land use map categories as implementing districts, the zone map amendment is in accordance with the future land use map. The description for Community Commercial Mixed Use says “Developments in this land use area should be located on one or two quadrants of intersections of the arterial and/or collector streets and integrated with transit and non-automotive routes.” The B-2M portion of this application is located near but not at the intersection of collector and arterial streets. Bridger Drive is an arterial and Story Mill Road is a collector. The site is already zoned in part for commercial purposes predating the adoption of the Bozeman Community Plan 2020; and sections of the B-2M area are subject to floodplains and watercourse setbacks that will restrict portions of the property from development with any zoning district. The proposed B- 2M area is across Story Mill Road from an area zoned as B-2 which includes larger historic buildings that are proportionate in scale to the B-2M district potential. The intersection of Bridger Drive and Story Mill Road is expected to be signalized in the next few years as development in the area continues. The proposed B-2M area is approximately 1 block from the intersection. The location will still be generally suitable to provide the types of community services described in the application. Therefore, staff finds that despite the application not being fully compliant with the land use description, overall the application is in accordance with the Community Commercial Mixed Use future land use description. Goals and Policies This section evaluates compliance with the goals and policies contained within the Bozeman Community Plan 2020. The zone map amendments can be found to both accord to the Bozeman Community Plan 2020 and implement the plan. Staff has found no conflict between the proposed zone map amendments and the Bozeman Community Plan 2020 and have found accordance between the amendments and the plan. Further, approval of the application may implement the Bozeman Community Plan 2020 by acting to further the objectives of the plan. Approval of this proposal would be in accordance with or implement several goals and objectives of the Community Plan, including: Goal N-1: Support well-planned, walkable neighborhoods. Objective N-1.1 Promote housing diversity, including missing middle housing. 343 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 15 of 30 The overall site currently contains areas of the R-4 and B-1 districts, which separates future residential projects from commercial projects on site based on the zoning for different tracts of record on the site. The proposed zone map amendment would realign the site into two different, mixed use districts that would still provide for a mixture of uses over the site, but does not separate them based on the existing tracts of record, which existed when the zoning was adopted for the site. The reconfigured, new zoning districts would allow for more site-specific project planning of the overall site. This, along with the context of the site in relation to surrounding parks, trails, roads, and other public facilities, and existing housing, can support well-planned walkable neighborhoods by allowing design flexibility and master site planning. Such developments, although perhaps not on an individual basis but in gross, may in turn add to missing ‘middle housing’ (see below for clarification of this term) by encouraging efficient, mixed development. Goal N-2: Pursue simultaneous emergence of commercial nodes and residential development through diverse mechanisms in appropriate locations. The site has potential for an emergence of a small commercial node integrated into residential and mixed-use development where services are provided. There is substantial housing in the area already with limited nearby services. Goal N-3: Promote a diverse supply of quality housing units. Objective N-3.3 Encourage distribution of affordable housing units throughout the City with priority given to locations near commercial, recreational, and transit assets. Objective N-3.8 Promote the development of "Missing Middle" housing (side by side or stacked duplex, triplex, live-work, cottage housing, group living, rowhouses/townhouses, etc.) as one of the most critical components of affordable housing. This site is within the City where services are provided, surrounded on three sides by recreational assets, at the intersection of two city streets where the Bozeman Community Plan 2020 designates commercial/mixed use development, and would allow residential development, such as duplex, triplex, live-work, cottage housing, group living, rowhouses/townhouses, etc., called "Missing Middle" housing per the Bozeman Community Plan 2020. REMU specifically authorizes all of these residential uses. The Bridger View Redevelopment subdivision is currently in construction to the north. This development includes a sizable fraction of income restricted housing. By providing for the proposed zoning districts and well-planned distribution of residential and non-residential uses across the site based on site specifics, approval of the zone map amendments may encourage affordable housing and implement Goal N-2 and Objectives N-3.3 and N-3.8. This goal is less applicable to the B-2M portion of the application. Goal DCD-1: Support urban development within the City. 344 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 16 of 30 Objective DCD-1.9 Promote mixed-use developments with access to parks, open space, and transit options. Approval of the zone map amendment to two mixed use districts would promote mixed uses; the site has excellent access to parks and open space, and is at the intersection of two city streets near Bridger Drive, a principal arterial. The site has been annexed for many years. Goal M-1: Ensure multimodal accessibility. Objective M-1.1 Prioritize mixed-use land use patterns. Encourage and enable the development of housing, jobs, and services in close proximity to one another. Approval of the zone map amendment to two mixed use districts would work to prioritize mixed-use land use patterns. Because the proposed REMU and B-2M districts would allow for a planned mix of commercial and residential uses in close proximity, approval of the zone map amendment would implement Objective M-1.1 and be in accord with Goal M-1. There are significant trail corridors adjacent to the site connecting to downtown, areas outside of the city, and recreational destinations. Goal EE-1: Promote the continued development of Bozeman as an innovative and thriving economic center. Objective EE-1.3 Continue to facilitate live/work opportunities as a way to support small, local businesses in all zoning districts. Because the proposed REMU and B-2M districts would allow for a planned mix of commercial and residential uses in close proximity to one another, approval of the zone map amendment would implement Objective EE-1.3 by facilitating live/work opportunities and accord to Goal EE-1. B. Secure safety from fire and other dangers. Criterion met. The subject property is currently served by City of Bozeman Fire and Police Departments. Future development of the property will be required to conform to all City of Bozeman public safety, building and land use requirements, which will ensure this criterion is met. Floodplains have been mapped on portions of the property and any future review must comply with the restrictions on development due to flooding potential. The zone change is not likely to adversely impact safety from fire and other dangers. C. Promote public health, public safety, and general welfare. Criterion met. City development standards included in Chapter 38, Unified Development Code, building codes, and engineering standards all ensure that this criterion is met. Adequate water and sewer supply and conveyance provide for public health through clean water. Rapid and effective emergency response provides for public safety. The City’s standards ensure that adequate services are provided prior to building construction which advances this criterion. General welfare has been evaluated during the adoption of Chapter 38 and found to be 345 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 17 of 30 advanced by the adopted standards. Provision of parks, control of storm water, and other features of the City’s development standards also advance the general welfare. Compliance with the BCP 2020 as described in Section 6, Criterion A, shows advancement of the well- being of the community as a whole. See also Criterion B. D. Facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements. Criterion met. The BCP 2020, page 74, says the following regarding evaluation of Section 6, Criteria B, C, & D for zoning amendments: “For a map amendment, all three of the above elements are addressed primarily by the City’s long range facility Plans, the City’s capital improvements program, and development standards adopted by the City. The standards set minimum sizing and flow requirements, require dedication of parks, provision of right of way for people and vehicles, keep development out of floodplains, and other items to address public safety, etc. It is often difficult to assess these issues in detail on a specific site. For example, at the time of annexation, the final intensity of development is unknown and it may be many years before development occurs and the impacts are experienced. The availability of other planning and development review tools must be considered when deciding the degree of assurance needed to apply an initial zoning at annexation.” The City conducts extensive planning for municipal transportation, water, sewer, parks, and other facilities and services provided by the City. The adopted plans allow the City to consider existing conditions; and identify enhancements needed to provide service to new development. See page 19 of the BCP 2020 for a listing. The City implements these plans through its capital improvements program (CIP). The CIP identifies individual projects, project construction scheduling, and financing of construction for infrastructure. Private development must demonstrate compliance with standards prior to construction. Dedication of school facilities is not required by municipal zoning standards. However, School District 7 will have opportunity to review and comment on future development. The application site is located within the City’s land use, transportation, parks, and utility planning areas. Those plans show this property as developing within the City when development is proposed. Adequacy of all these public requirements is evaluated during the subdivision and site development process. All zoning districts in Bozeman enable a wide range of uses and intensities. At the time of future subdivision or site plan review the need for individual services can be more precisely determined. No subdivision or site plan is approved without demonstration of adequate capacity. As stated in 38.300.020.C, the designation of a zoning district does not guarantee approval of new development until the City verifies the availability of needed infrastructure. 346 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 18 of 30 38.300.020.C, “Placement of any given zoning district on an area depicted on the zoning map indicates a judgment on the part of the city that the range of uses allowed within that district are generally acceptable in that location. It is not a guarantee of approval for any given use prior to the completion of the appropriate review procedure and compliance with all of the applicable requirements and development standards of this chapter and other applicable policies, laws and ordinances. It is also not a guarantee of immediate infrastructure availability or a commitment on the part of the city to bear the cost of extending services.” As noted, the placement of a zoning district does not commit the City to infrastructure funding. However, the City uses its annual CIP to schedule and fund construction of public infrastructure. The CIP is updated each fall and addresses all types of local infrastructure. The City may choose to fund some or all of infrastructure construction when deemed adequately beneficial to the public. The City can also support construction of infrastructure through other tools such as special improvement districts or development reimbursement agreements (sometimes called paybacks or latecomer agreements). This property is within a payback district established in 2016 for the Bridger Drive Trunk Sewer Main involving the current developers (and another landowner), which resulted in sewer improvements and increased capacity for further development of the area. The future development of the site will likely require dedication of additional right of way and further construction of streets, provision of mitigation for impacts on parks, extension of water and sewer services, and placement of easements for telecommunication, electricity and similar dry utilities. The needs for other public requirements will also be assessed during development review to ensure adequacy of public requirements. E. Reasonable provision of adequate light and air. Criterion met. This criterion is not about individual preferences for a given degree of visual openness but about preservation of public health. The REMU and B-2M districts provide adequate light and air through the Bozeman Unified Development Code’s standards for park and recreation requirements, maximum building height, lot coverage, and setback requirements. The form and intensity standards, Division 38.320, provide minimum lot areas, lot widths, lot coverage and maximum floor area ratios, and prescribe require minimum separation from property lines and limits building heights. Section 38.520.030 requires building placement to ensure access to light and air. Division 38.420 and Section 38.520.060 require dedication of parks and on-site open spaces to meet needs of residents. The standards provide a reasonable provision of adequate light and air. In addition to the zoning standards, adopted building codes contain more detailed requirements for air circulation, window placement, and building separation that further ensure the intent of this criterion is satisfied. 347 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 19 of 30 F. The effect on motorized and non-motorized transportation systems. Neutral. The site is positioned at the intersection of two City streets: East Griffin Drive (a local street) and Story Mill Road (a collector), which connect to Bridger Drive (a principal arterial) and other streets. In addition, the site connects to multiple trails found in the Story Mill Community Park and surrounding public trails and sidewalks including the Trail to the M which connects to the Oak Street corridor for an east to west crossing of the City. The requested changes in zoning from R-4 and B-1 to REMU and B2-M will not immediately impact the motorized and non-motorized transportation systems. The specific future land uses and intensity of development for the site are not yet known. However, the mix of residential and commercial uses allowed under the proposed zoning, with more flexibility for non-residential development throughout the site, is likely to provide a more central area of economic activity and commercial uses, thus increasing future provision of goods, services, and employment opportunities in close proximity to existing and future residences, thereby reducing the number of trips into other areas of the City to meet the residents’ needs. In any case, development of the property will be required to comply with transportation-related standards and reviewed for impacts on the surrounding streets, intersections, and sidewalks, and improvements to the transportation network to serve the site are likely through development review requirements, which will likely improve some aspects of the overall transportation system. G. Promotion of compatible urban growth. Criterion met. The Bozeman Community Plan establishes a preferred and compatible development pattern. “The land use map sets generalized expectations for what goes where in the community… The land use categories and descriptions provide a guide for appropriate development and redevelopment locations for civic, residential, commercial, industrial, and other uses. The future land use designations are important because they aim to further the vision and goals of the City through promoting sustainability, citizen and visitor safety, and a high quality of life that will shape Bozeman’s future.” (Community Plan p. 51) The City’s future land use map designates the properties as Residential Mixed Use and Community Commercial Mixed Use. These designations correlate with several zoning districts including the REMU and B-2M districts proposed by the applicants. These districts were developed by the City to promote appropriate urban growth compatible with the areas of the City as identified on the future land use map. Based on the land use map designations and correlated zoning districts in the plan and proposed by the applicants, the zone map amendment would promote compatible urban growth. Also see the discussion in (H) below. 348 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 20 of 30 H. Character of the district. Criterion met. Section 76-2-302, MCA says “…legislative body may divide the municipality into districts of the number, shape, and area as are considered best suited to carry out the purposes [promoting health, safety, morals, or the general welfare of the community] of this part.” Emphasis added. This proposal amends the zoning map and not the text. Therefore, no element of this amendment modifies the standards of any zoning district. The character of the districts as created by those standards remains intact. As noted above, the City Commission has latitude in considering the geographical extents of a zoning district. Application of any municipal zoning district to the subject property will alter the existing character of the subject property which is a rural individual home with agricultural buildings. It is not expected that zoning freeze the character of an area in perpetuity. Rather, it provides a structured method to consider changes to the character. The City has defined compatible development as: “The use of land and the construction and use of structures which is in harmony with adjoining development, existing neighborhoods, and the goals and objectives of the city's adopted growth policy. Elements of compatible development include, but are not limited to, variety of architectural design; rhythm of architectural elements; scale; intensity; materials; building siting; lot and building size; hours of operation; and integration with existing community systems including water and sewer services, natural elements in the area, motorized and non-motorized transportation, and open spaces and parks. Compatible development does not require uniformity or monotony of architectural or site design, density or use.” The City has adopted many standards to identify and avoid or mitigate demonstrable negative impacts of development. These will support the ability of future development in the proposed REMU and B-2M districts to be compatible with adjacent development’s mixed-use characteristics and uphold the unique character of the area. The site is a former stockyard and low density residential area. The former heavy industry of the Story Mill, an industrial anchor in the Gallatin Valley for many decades, has stopped operations. Various parties have looked at redeveloping the area to uses other than industrial and agriculture since at least 2007. The Story Mill Park has recently been developed and the Bridger View Redevelopment subdivision is now in construction in the near vicinity and are changing the long term nature of the uses in the area. The character of the area is in flux. The existing zoning in the off-site but nearby area of roughly a quarter mile radius includes higher density residential (annexed), lower density residential (annexed and unannexed), business, and light industrial. A review of the uses allowed in the proposed zones shows many similarities with existing and authorized uses in the surrounding area. Therefore, the change in zoning does not appear to conflict with the character of the area. 349 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 21 of 30 I. Peculiar suitability for particular uses. Neutral. Future uses for construction on the site are not finalized at this time, so the suitability of the site for particular uses is not easily evaluated at this time. However, the proposed REMU and B-2M districts would provide for a broader variety of non-residential uses throughout the site than the existing B-1 and R-4 districts. The site contains several buildings that have occupied the site for decades, and the site appears suitable for urban development without major constraints related to floodplains, human-wildlife conflict, steep slopes or other hazards. Although floodplains are present along the East Gallatin River the majority of the site is outside of the floodplain. The proposed REMU and B2-M districts can support many types of urban development that are likely to serve the immediate area as a result of its location and proximity to residential areas to the north. Final determination of suitability will occur during the site development process. J. Conserving the value of buildings. Criterion met. There are currently several buildings on the property, which the application indicates will be mostly retained at the site; their values may be positively impacted if plans for their re-use are developed and implemented. The values of surrounding buildings are unlikely to be impacted to a measurable degree as the site is developed according to the proposed REMU and B-2M mixed use districts, because development of the site with various uses has been anticipated since annexation over 15 years ago. The values of some buildings may improve in the future as new and improved amenities are provided to the area as the site is developed according to the proposed REMU and B-2M districts, while other buildings’ values are unlikely to be impacted largely due to a robust real estate market and lack of unmitigated offensive uses allowed by the proposed zoning districts. K. Encourage the most appropriate use of land throughout the jurisdictional area. Criterion met. As stated above, the Bozeman Community Plan illustrates the most appropriate use of the land through the future land use map. This application complies with the BCP 2020 by proposing zone map amendments of districts that continue to implement the future land use map designations. In this case, urban-scale residential and some mixed-use development have been identified by the community as the most appropriate types of development for the property. The Unified Development Code contains standards, protections and review processes to ensure the land is developed in ways that are appropriate to a site’s context and according to the BCP 2020. Spot Zoning Criteria Rezoning may, in certain factual circumstances, constitute impermissible “spot zoning.” The issue of whether a rezoning constitutes spot zoning was discussed by the Montana Supreme Court in Plains Grains LP v. Board of County Comm’rs of Cascade County and Little v. Bd. 350 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 22 of 30 Of County Comm’rs, in which the Court determined that the presence of the following three conditions generally will indicate that a given situation constitutes spot zoning, regardless of variations in factual scenarios. Based on the review of the following criteria, Staff concludes that this application is not Spot Zoning. 1. Is the proposed use significantly different from the prevailing land uses in the area? No. This criterion includes the modifier ‘significantly.’ It is not prohibited to have uses that are different. To satisfy this criterion, the reviewer must demonstrate a ‘significant difference.’ As an example, in the Plains Grains LP case the change was from Agricultural to Heavy Industrial; and in the Little case the zoning was commercial which zoning was in conflict with the planned residential uses shown in the growth policy and existing in the surrounding area. Although the majority of the site is currently zoned R-4, a primarily residential district, all City zoning districts including R-4 provide for some non-residential uses, as does the rest of the site, which is zoned B-1, a business-oriented district. The City recently updated its growth policy and revised the future land use designations for this area. As noted in Criterion A above, the proposed zoning is in accordance with the growth policy. The proposed REMU and B-2M districts are likely to provide more flexibility for non- residential uses over the entirety of the site, but through comprehensive development review processes and according to extensive standards found in the Bozeman Unified Development Code. There is not a single obvious “prevailing land use” in the area due to the mixed history of uses and ongoing redevelopment of the area, but residential uses are the most common in the immediate vicinity. With future mixed use development plans submitted, reviewed and implemented according to City requirements, the allowed mix of land uses in the proposed REMU and B-2M districts are likely to be integrated into the area in a manner that the non-residential uses are more likely to support the surrounding land uses, including surrounding residences, rather than negatively impact or deviate from surrounding land uses in a significant manner. 2. Is the area requested for the rezone rather small in terms of the number of separate landowners benefited from the proposed change? Yes. The application is submitted by one landowner for six tracts of record. Division 38.260 Part 2 describes the process to request a zone map amendment and its review. Section 38.260.100 explicitly authorizes an individual landowner to initiate a zone map amendment. The BCP 2020 also discusses the initiation of zone map amendments. On page 72, the needed justification for a zone map change is discussed. It states that landowner preference, when coupled with compliance with the criteria established in statute, is sufficient to justify an amendment. 351 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 23 of 30 3. Would the change be in the nature of “special legislation” designed to benefit only one or a few landowners at the expense of the surrounding landowners or the general public? No. While only one landowner would directly ‘benefit’ from the zone change, there is no reason to believe this would come at the expense of surrounding landowners or the general public. To the contrary, the BCP 2020 is an expression of the public’s desires for different types and scales of urban development throughout the City. The proposed zoning aligns with the BCP 2020, and therefore is to the benefit of the general public. PROTEST NOTICE FOR ZONING AMENDMENTS IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION. The City will accept written protests from property owners against the proposal described in this report until the close of the public hearing before the City Commission. Pursuant to 76-2-305, MCA, a protest may only be submitted by the owner(s) of real property within the area affected by the proposal or by owner(s) of real property that lie within 150 feet of an area affected by the proposal. The protest must be in writing and must be signed by all owners of the real property. In addition, a sufficient protest must: (i) contain a description of the action protested sufficient to identify the action against which the protest is lodged; and (ii) contain a statement of the protestor's qualifications (including listing all owners of the property and the physical address), to protest the action against which the protest is lodged, including ownership of property affected by the action. Signers are encouraged to print their names after their signatures. A person may in writing withdraw a previously filed protest at any time prior to final action by the City Commission. Protests must be delivered to the Bozeman City Clerk, 121 North Rouse Ave., PO Box 1230, Bozeman, MT 59771-1230. APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND Ryan Krueger of Intrinsik Architecture, representing applicants Christine and Kevin Huyser of Wake Up Inc., seeks to amend the zoning map designation on property owned by Wake Up Inc. The zone map amendment would change the zoning of 1.23 acres of B-1 (Neighborhood Business District) and 1.88 of R-4 (Residential High Density District) to 352 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 24 of 30 REMU (Residential Emphasis Mixed-Use District) and 1.65 acres of B-1 and 10.52 acres of R-4 to B-2M (Community Business District – Mixed), for a total zone map amendment area of 15.28 acres. The zone changes include the public road rights-of-ways/easements for Story Mill Road and East Griffin Drive. The subject property is located along the west side of side of Story Mill Road at its intersection with East Griffin Drive, and includes portions of East Griffin Drive and land on the north and south sides of East Griffin Drive. The 15+ acre property is comprised of six tracts of record. It contains numerous buildings, several associated with a central livestock auction building, such as open sheds and barns. A “café” building is located along Story Mill Road in the right-of-way. There are also two dwellings and mobile home on the tracts north of East Griffin Drive. East Griffin Drive traverses the property east to west. The East Gallatin River and associated wetlands and floodplain are found along the southwestern boundaries, but do not occupy a significant portion of the site. The Bozeman Community Plan designates the property as “Residential Mixed Use” and “Community Commercial Mixed Use.” The proposed zoning districts are in accordance with the Community Plan designations. Urban utilities and services are available. APPENDIX B - NOTICING AND PUBLIC COMMENT Notice of the application and public hearings was published in the Bozeman Daily Chronicle on June 27 and July 4, 2021. Notice was sent via first class mail to adjacent landowners on June 25, 2021 and posted on the property on June 25, 2021. No public comments have been received to date. 353 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 25 of 30 APPENDIX C - PROJECT GROWTH POLICY AND PROPOSED ZONING Adopted Growth Policy Designations: The property’s growth policy designations on the Future Land Use Map of the 2020 Bozeman Community Plan (Growth Policy) include “Residential Mixed Use” and “Community Commercial Mixed Use”. This [Residential Mixed Use] category promotes neighborhoods substantially dominated by housing, yet integrated with small-scale commercial and civic uses. The housing can include single-attached and small single-detached dwellings, apartments, and live-work units. if buildings include ground floor commercial uses, residences should be located on upper floor. variation in building mass, height, and other design characteristics should contribute to a complete and interesting streetscape. Secondary supporting uses, such as retail, office, and civic uses, are permitted on the ground floor. All uses should complement existing and planned residential uses. Non-residential uses are expected to be pedestrian oriented and emphasize the human scale with modulation in larger structures. Stand alone, large, non-residential uses are discouraged. Non-residential spaces should provide an interesting pedestrian experience with quality urban design for buildings, sites, and open spaces. This category is appropriate near commercial centers. Larger areas should be well served by multimodal transportation routes. Multi-unit, higher density, urban development is expected. Any development within this category should have a well-integrated transportation and open space network that encourages pedestrian activity and provides ready-access within and adjacent development. The Community Commercial Mixed Use category promotes commercial areas necessary for economic health and vibrancy. This includes professional and personal services, retail, education, health services, offices, public administration, and tourism establishments. Density is expected to be higher than it is currently in most commercial areas in Bozeman and should include multi-story buildings. Residences on upper floors, in appropriate circumstances, are encouraged. The urban character expected in this designation includes urban streetscapes, plazas, outdoor seating, public art, and hardscaped open space and park amenities. High density residential areas are expected in close proximity. Developments in this land use area should be located on one or two quadrants of intersections of the arterial and/or collector streets and integrated with transit and non-automotive routes. Due to past development patterns, there are also areas along major streets where this category is organized as a corridor rather than a center. Although a broad range of uses may be appropriate in both types of locations, the size and scale is to be smaller within the local service areas. Building and site designs made to support easy reuse of the building and site over time is important. Mixed use areas should be developed in an integrated, pedestrian friendly manner and should not be overly dominated by any single use. Higher intensity uses are encouraged in 354 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 26 of 30 the core of the area or adjacent to significant streets and intersections. Building height or other methods of transition may be required for compatibility with adjacent development. Smaller neighborhood scale areas are intended to provide local service to an area of approximately one half-mile to one mile radius as well as passersby. These smaller centers support and help give identity to neighborhoods by providing a visible and distinct focal point as well as employment and services. Densities of nearby homes needed to support this scale are an average of 14 to 22 dwellings per net acre. Proposed Zoning Designation and Land Uses: The applicant has requested a zone map amendment to REMU (Residential Emphasis Mixed- Use District) and B-2M (Community Business Mixed-Use). The following are the stated intents and purposes of these districts: Community business district - mixed (B-2M): The B2-M district is intended to function as a vibrant mixed-use district that accommodates substantial growth and enhances the character of the City. It provides for a range of commercial uses serving the immediate area and broader trade area and encourages the integration of multi- household residential as a secondary use. Design standards emphasizing pedestrian oriented design are important elements of this district. Use of this zone is appropriate for arterial corridors, commercial notes, and/or areas served by transit. Residential emphasis mixed-use zoning district (REMU): The intent and purpose of the REMU district is to establish areas within Bozeman that are mixed- use in character and to provide options for a variety of housing, employment, retail and neighborhood service opportunities within a new or existing neighborhood. These purposes are accomplished by: 1. Emphasizing residential as the primary use, including single household dwellings, two to four household dwellings, townhouses, and apartments. 2. Providing for a diverse array of neighborhood-scaled commercial and civic uses supporting residential. 3. Emphasizing a vertical and horizontal mix of uses in a compact and walkable neighborhood setting. 4. Promoting neighborhoods that: a. Create self-sustaining neighborhoods that will lay the foundation for healthy lifestyles; b. Support compact, walkable developments that promote balanced transportation options; c. Have residential as the majority use with a range of densities; d. Provide for a diverse array of commercial and civic uses supporting residential; e. Have residential and commercial uses mixed vertically and/or horizontally; 355 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 27 of 30 f. Locate commercial uses within walking distance; g. Incorporate a wider range of housing types; and 5. Encourage developments that exhibit the physical design characteristics of vibrant, urban, and pedestrian-oriented complete streets. Providing standards and guidelines that emphasize a sense of place: a. Support or add to an existing neighborhood context; b. Enhance an existing neighborhood's sense of place and strive to make it more self- sustainable; c. Encourage a new neighborhood commercial center(s) with a unique identity and strong sense of place; d. Develop commercial and mixed-use areas that are safe, comfortable, and attractive to pedestrians; and e. Reinforce the principle of streets as public places that encourage pedestrian and bicycle travel, transit, on-street parking and physical elements of complete streets. 6. Providing standards and guidelines that emphasize natural amenities: a. Preserve and integrate the natural amenities into the development; and b. Appropriately balance a hierarchy of both parks and public spaces that are within the neighborhood. 7. Providing standards and guidelines that emphasize the development of centers: a. Group uses of property to create vibrant centers; b. Where appropriate create a center within an existing neighborhood; c. Facilitate proven, market driven projects to ensure both long and short-term financial viability; d. Allow an appropriate blend of complementary mixed land uses including, but not limited to, retail, offices, commercial services, restaurants, bars, hotels, recreation and civic uses, and housing, to create economic and social vitality; e. Foster the master plan development into a mix of feasible, market driven uses; f. Emphasize the need to serve the adjacent, local neighborhood and as well as the greater Bozeman area; and g. Maximize land use efficiency by encouraging shared use parking. 8. Promoting the integration of action: a. Support existing infrastructure that is within and adjacent to REMU zones; b. Encourage thoughtfully developed master planned communities; c. Provide flexibility in the placement and design of new developments and redevelopment to anticipate changes in the marketplace; 356 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 28 of 30 d. Provide flexibility in phasing to help ensure both long and short term financial viability for the project as a whole; 9. Providing standards and guidelines that promote sustainable design Use of this zone is appropriate for sites at least five acres in size and areas located adjacent to an existing or planned residential area to help sustain commercial uses within walking distance and a wider range of housing types. The following figure from the 2020 Community Plan, with red and orange boxes indicating the applicability of this proposed ZMA, illustrates how the proposed REMU and B-2M districts correlate with its Community Commercial Mixed Use designation of the Future Land Use Map: 357 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 29 of 30 358 21102 Staff Report for the Stockyard Properties Zone Map Amendment Page 30 of 30 APPENDIX D - OWNER INFORMATION AND REVIEWING STAFF Owner: Wake Up Inc., represented by Christine and Kevin Huyser, PO Box 23, Harrison, MT, 59735 Applicant: Wake Up Inc., by Christine and Kevin Huyser, PO Box 23, Harrison, MT, 59735 Representative: Ryan Krueger of Intrinsik Architecture, 111 North Tracy Avenue, Bozeman, MT, 59715 Report By: Chris Saunders, Community Development Manager FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Annexation or Zone Map Amendment. ATTACHMENTS The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. Application materials are at: https://weblink.bozeman.net/WebLink/Browse.aspx?startid=234995&cr=1 359 Stockyard Properties Zone Map Amendment 930, 1005, 1011, 1017, 1018, &1019 East Griffin Drive S06, T02 S, R06 E, C.O.S. 1147A, PARCEL 4, ACRES 10.1, LESS COS 1147B STORY MILL NBHD ANNEX TO BZN Zone Map Amendment to rezone to B-2M & REMU R-4 & B-1 15.33 Acres Landscaped & Mixed TBD TBD TBD TBD TBD TBD TBD TBD X X 360 361 X 362 363 364 Property Owners Name Legal Description of Property Mailling Address from County Tax Records Contigious or Not 1 WAKE UP INC S06, T02 S, R06 E, C.O.S. 1147A, PARCEL 4, ACRES 10.1, LESS COS 1147B STORY MILL NBHD ANNEX TO BZN PO BOX 23 HARRISON, MT 597350023 Contigious 2 WAKE UP INC S06, T02 S, R06 E, C.O.S. 1147A, PARCEL 4, ACRES 10.1, LESS COS 1147B STORY MILL NBHD ANNEX TO BZN PO BOX 23 HARRISON, MT 597350024 Contigious 3 CITY OF BOZEMAN S05, T02 S, R06 E, C.O.S. 2865, PARCEL 2, ACRES 1.71 121 N ROUSE AVE BOZEMAN, MT 597153740 Contigious 4 CITY OF BOZEMAN S31, T01 S, R06 E, C.O.S. 2865, PARCEL 5, ACRES 10.3 122 N ROUSE AVE BOZEMAN, MT 597153740 Contigious 5 2511N LLC & UND 84% INT & 2332 LLC UND 16% INT S05, T02 S, R06 E, C.O.S. 1877B, PARCEL C2-A, ACRES 5.615 PO BOX 13 BOZEMAN, MT 597710013 Contigious 6 SCHLEGEL MICHAEL J S05, T02 S, R06 E, C.O.S. 1877B, PARCEL 1T-1, ACRES 7.5099 2210 LEA AVE BOZEMAN, MT 597152264 Not Contigious 7 MONTANA RAIL LINK PROPERTY MANAGEMENT MRL CITY OF BOZEMAN S06, T02 S, R06 E, RAILROAD RW BIKE PATH BEING POR OF STORY MILL SPUR BETWEEN MILEPOST 0+16 & MILEPOST 0+3678 BEING 19,200 SQ FT LEASE 500,539 STORY MILL ANNEX TO BZN WASHINGTON CORP PO BOX 16630 MISSOULA, MT 598086630 Not Contigious 8 CITY OF BOZEMAN S06, T02 S, R06 E, C.O.S. 2865, PARCEL 8, ACRES 16.58 122 N ROUSE AVE BOZEMAN, MT 597153740 Not Contigious 9 BURLINGTON NORTHERN RAILROAD CO S05, T02 S, R06 E, ABANDONED C M ST P & P RR BEING STORY MILL SPUR LYING W OF THE CNTRLNE OF THE MAIN TR IN NW1/4NW1/4 .04 PROPERTY TAX DEPT PO BOX 961089 FORT WORTH, TX 761610089 Contigious 10 WAKE UP INC S06, T02 S, R06 E, C.O.S. 1147A, PARCEL 3, ACRES 0.85, STORY MILL NBHD ANNEX TO BZN PO BOX 23 HARRISON, MT 597350023 Contigious 11 CITY OF BOZEMAN S05, T02 S, R06 E, C.O.S. 2865, PARCEL 3, ACRES 5.68 122 N ROUSE AVE BOZEMAN, MT 597153740 Not Contigious 12 WAKE UP INC S31, T01 S, R06 E, C.O.S. 2547, PARCEL 23A, ACRES 2.267, NORTHEAST ANNEX PO BOX 23 HARRISON, MT 597350023 Contigious 13 CITY OF BOZEMAN S05, T02 S, R06 E, C.O.S. 2865, PARCEL 1, ACRES 1.11 122 N ROUSE AVE BOZEMAN, MT 597153740 Contigious 14 WAKE UP INC S31, T01 S, R06 E, C.O.S. 1147A, PARCEL 1, ACRES 0.51, NORTHEAST ANNEX PO BOX 23 HARRISON, MT 597350023 Contigious 15 WAKE UP INC S31, T01 S, R06 E, C.O.S. 1147A, PARCEL 2, ACRES 0.79 PO BOX 23 HARRISON, MT 597350024 Contigious 16 CHRISTIE CLIFFORD K & SALLY FRANKLIN S31, T01 S, R06 E, SE4SE4 TRACT 22 PLUS ABANDONED MENARD LINE LYING ADJ TO TR 22 NORTHEAST ANNEXATION 1015 E GRIFFIN DR BOZEMAN, MT 597152259 Contigious 17 WAKE UP INC S31, T01 S, R06 E, C.O.S. 2547, PARCEL K, ACRES 0.736, NORTHEAST ANNEX PO BOX 23 HARRISON, MT 597350024 Contigious 18 HUMAN RESOURCES DEVEL COUNCIL DIST IX IN S31, T01 S, R06 E, C.O.S. 2547, PARCEL 26, ACRES 8.025, NORTHEAST ANNEX 32 S TRACY AVE BOZEMAN, MT 597154659 Contigious 19 CITY OF BOZEMAN S31, T01 S, R06 E, C.O.S. 2865, PARCEL 4, ACRES 9.92 122 N ROUSE AVE BOZEMAN, MT 597153740 Contigious 20 CITY OF BOZEMAN S31, T01 S, R06 E, ABANDONED C M ST P & P RR MENARD LINE IN PT SE4SE4 LYING E OF & ADJ TO TRACT 24 NORTHEAST ANNEX .22 & ABANDONED C M ST P & P RR MENARD LINE IN PT SE4SE4 1.22 123 N ROUSE AVE BOZEMAN, MT 597153740 Contigious Stockyard Properties ZMA Adjacent Property Owners List 3.3.2021 365 Tyler Steinway 930, 1005, 1011, 1017, 1018 & 1019 East Griffin Drive 366 367 368 STOCKYARD PROPERTIES Zone Map Amendment April 2021 369 2 April 2021 Zone Map Amendment: Stockyard Properties Table of Contents 1. Application Forms & Checklists 2. Project Team 3. Narrative I. Project Overview II. Relevant Project History III. Response to Zone Map Amendment Approval Criteria IV. Response to Spot Zoning Criteria Appendices Appendix A.1: Vicinity Map Appendix A.2: Existing Zoning Map Appendix A.3: Proposed Zoning Map Appendix A.4: Future Land Use Map Appendix A.5: Existing Conditions Map Appendix B.1: Zone Map Amendment Map - Current Parcels Appendix B.2: Zone Map Amendment Map - Future Parcels Appendix B.3: Zone Map Amendment Editable Legal Description 370 3 April 2021 Zone Map Amendment: Stockyard Properties 1. Application Forms & Fees The required application forms for the Stockyard Properties Zone Map Amendment (ZMA) application have been included in this submittal. The calculated fee totals are outlined below. 2. Project Team APPLICANT Wake Up Inc Christine & Kevin Huyser PO Box 23 Harrison, MT 59735 P. 310.717.8807 PROJECT CONSULTANTS Planning Intrinsik Architecture, Inc. Attn: Ryan Krueger 111 N. Tracy Avenue, Bozeman, MT 59715 p. 406.582.8988 Civil Engineering Stahly Engineering & Associates, Inc. Attn: Cordell Pool 851 Bridger Drive Ste. 1 Bozeman, MT 59715 p. 406.522.8594 COMPONENT FEE QUANTITY TOTAL ZMA Base Fee $2,049.00 1 $2,049.00 Scaled Fee per Acre $58.00 15.33 $889.14 TOTAL $ 2,938.14 371 4 April 2021 Zone Map Amendment: Stockyard Properties 3. Narrative I. Project Overview The subject Site consists of 6 parcels containing 15.33 gross acres (not inclusive of Rights of Way impacted by the ZMA) (Appendix A), and is located at the SE corner of the intersection Story Mill Road and East Griffin Drive (Appendix A.1). The Site is currently zoned a mix of R-4 (Residential High Density) and B-1 (Neighborhood Business) (Appendix A.2), lies within the Story Mill Historic District. The properties are remnants of the Big Sky Development that did not materialize or result in redevelopment in this area. The proposing zoning is more aligned with current conceptualizations for development in this location. Given its location and proximity to high traffic transit corridors, Story Mill Park, and medium density residential districts, this Site is a practical location for the proposed zone change to the more cotemporary designation of Community Business District - Mixed (B-2M) and Residential Emphasis Mixed Use (REMU) as described through this application (Appendix A.3). The Future Land Use Map in the adopted Bozeman Community Plan designates this Site as a mix of Community Commercial Mixed Use (CCMU) and Residential Mixed Use (RMU) in the Future Land Use Map (FLUM) outlined (Appendix A.4), which allows for the implementation of B-2M and REMU zoning with these FLUM categories. The project site is bounded by Story Mill Park to the west and Story Mill Road (a Collector) on the west side. East Griffin Drive (Local Street) bisects the project site, and will be improved to City standards prior to or concurrent with future Site The site is developed and contains a mix of existing buildings scattered across the 372 5 April 2021 Zone Map Amendment: Stockyard Properties 15.33 total project acres. There are currently six sites contained in this submittal as shown on the site survey (Appendix B). The concurrently submitted Subdivision Exemption further defines the proposed future lots that will support the ZMA requested. This Zone Map Amendment application meets the required approval criteria as demonstrated herein. Furthermore, as is also discussed in this application, this request is decidedly in alignment with numerous City Plans and the intent and purpose of the requested zones. B-2M is to intended to function as a vibrant mixed -use district, accommodating smart growth and enhancing the character of the city. The project site’s proximity to transit, neighborhoods, and parks make it an ideal candidate for this change. A similar statement can be made about REMU, mixed - use in nature and intended to provide for variety of future uses, in the case of REMU a variety in housing. Future development of these parcels will propose a mix of uses appropriate to serve the residents of both zones, at a scale and scope expected of an important infill site such as this one. While the Stockyard Cafe will be moved from the ROW to allow for construction of Story Mill Road, most of the buildings will remain. Future submittals by this project team will explore conceptual site designs, preliminary subdivision possibilities, and a litany of additional Bozeman development standards, and we look forward to those steps. For this submittal, the enclosed applications materials meet the necessary criteria for approval. 373 6 April 2021 Zone Map Amendment: Stockyard Properties II. Relevant Project Details As there are several existing buildings, it is evident previous development has occurred at this Site. This application is not proposing to change, discontinue, or otherwise impact the existing site development assumptions. Story Mill Road was recently approved for design and construction by the City (CIP # SIF117), and this Project Team has been in contact with the City’s contracted designer to look at options to extend the proposed Story Mill improvements through this Site. Upgrades to East Griffin Drive will also be necessary, and the Project Team will use future Concept submittals to discuss the timing of those improvements. Additional coordination with the Bridger View Redevelopment project to the north of this Site will be necessary, however initial coordination has already begun and will unfold with future site development. The Project Team has submitted a Subdivision Exemption request for the entire Site area. Two Concept applications are imminent for the north and south sides of Griffin, respectively. Subdivision, Site Plans (and possible Master Site Plans), and other applications are also expected upon future development. Parkland, Affordable Housing, and other such requirements are also to be addressed at the appropriate future application review stage. III. Responses to ZMA Approval Criteria Below are responses to the ZMA approval criteria (Section 76 -2-304, MCA) that address how the project relates to and meets the criteria outlined for the approval of a zone map amendment. A. Is the new zoning designed in accordance with the growth policy? Yes, therefore this criterion has been met. The future land use for the subject property was amended with the adoption of the 2020 Bozeman Community Plan and each zone requested is allowed within the approved Future Land Use categories that exist at this Site. 374 7 April 2021 Zone Map Amendment: Stockyard Properties As is shown in the figure below, B-2M is allowed within Community Commercial Mixed Use (CCMU) category and REMU within the Residential Mixed Use category. The proposed zoning would provide for development opportunities for a wider variety of housing types, neighborhood -scale commercial uses, and land development patterns to unfold than the current zoning. REMU and B-2M offer allowances for density to provide for urban- scale mixed-use development options. Approval of this request would also reinforce the following objectives of the Community Plan: N-2.2 Revise the zoning map to support higher intensity residential districts near schools, services, and transportation. N-2.3 Investigate and encourage development of commerce concurrent with, or soon after, residential development. Actions, staff, and budgetary resources relating to neighborhood commercial development should be given a high priority. N-4.1 Continue to recognize and honor the unique history, neighborhoods, neighborhood character, and buildings that contribute to Bozeman’s sense of place through programs and policy led by both City and community efforts. DCD-1.7 Coordinate infrastructure construction, maintenance, and upgrades to support infill development, reduce costs, and minimize disruption to the public. 375 8 April 2021 Zone Map Amendment: Stockyard Properties DCD-1.9 Promote mixed-use developments with access to parks, open space, and transit options. DCD-2.2. Support higher density development along main corridors and at high visibility street corners to accommodate population growth and support businesses. DCD-2.5 Identify and zone appropriate locations for neighborhood -scale commercial development. DCD-2.7 Encourage the location of higher density housing and public transit routes in proximity to one another. M-1.1 Prioritize mixed-use land use patterns. Encourage and enable the development of housing, jobs, and services in close proximity to one another. M-1.4 Develop safe, connected, and complementary transportation networks for pedestrians, bicyclists, and users of other personal mobility devices ( e- bikes, electric scooters, powered wheelchairs, etc.). The Bozeman Community Plan 2020 includes the justifications necessary to support a change in zoning. This application addresses two of those justifications: 1) a change in correlation between zoning and growth policy, and 2) the owner requests the change and can meet required standards. This narrative demonstrates that the relevant standards for each have been met and that no conflicts with the growth policy have been identified. B. Will the new zoning secure safety from fire and other dangers? Yes, therefore this criterion has been met. The subject property is currently located within the jurisdiction of the City of Bozeman Fire and Police Departments, and the service area of American Medical Response ambulances. The site is developed with buildings, several of which will be preserved and rehabilitated with development that follows this zone change. Future site development will conform to City of Bozeman public safety, building, floodplain, and land use requirements in compliance with the UDC, as well as all applicable building codes to help secure safety from fire and 376 9 April 2021 Zone Map Amendment: Stockyard Properties other dangers. The zone change is therefore unlikely to adversely impact Site safety. C. Will the new zoning promote public health, public safety and general welfare? Yes, therefore this criterion has been met. All future development of the site will require compliance with the City’s Unified Development Code, administration of which is employed by the City to ensure the promotion of public health, safety, and general welfare. The zone change will not place an undue burden on municipal services, emergency response capability, or the general public. D. Will the new zoning facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements? Yes, therefore this criterion has been met. The City’s adopted plans for municipal transportation, water, sewer, parks, and other facilities and services ensure that this site will have services necessary to serve new development. This infill project site lies within the City’s sewer, storm water and water facility plan boundaries. The proposed zoning amendment will allow for more intense and mixed -use development than is offered by the current zoning. Future submittals will be reviewed for compliance with the City ’s codes to ensure appropriate levels of transportation, water, sewer, schools, and parks are provided. Site plans, subdivision proposal, or other development applications will ensure adequate capacity for all required municipal services. As is stated in in the UDC, the designation of a zoning district does not guarantee approval of proposed development plans until the City can verify the availability of needed infrastructure and services. E. Will the new zoning provide reasonable provision of adequate light and air? Yes, therefore this criterion has been met. The City of Bozeman’s UDC 377 10 April 2021 Zone Map Amendment: Stockyard Properties includes standard’s that address setbacks, park dedication, on -site open space, and building design standards to address this requirement. Moreover, the building codes have standards for ingress and egress, ventilation, and related subjects that further support the provision of adequate light and air. Future site development will require compliance with all applicable City codes and standards necessary to ensure these primary human needs. F. Will the new zoning have an effect on motorize and non-motorized transportation systems? Yes, therefore this criterion has been met. The City’s transportation plan is used to evaluate transportation needs over the long term across the municipal area to account for the impacts of motorized vehicles as well as bikes and pedestrians. The park and trail plan also considers options for extending the trail network. Future site development will examine these impacts on the transportation network, parks and trails system, and municipal facilities. Furthermore, these future development reviews will ensure that the new zoning will comply with the City’s standards for the provision of onsite parking for bicycles and vehicles, as well as the requirements for onsite circulation. Traffic impacts will be studied by the development team to demonstrate compliance with the City’s long-range transportation plans. Future project development will ensure compliance with the acceptable traffic limits identified in the transportation plans, as well as provide for the dedication of rights of way, construction or reconstruction of streets, payment of impact fees, and other contributions as will be applicable to this project. Future development under the proposed zoning will look advance the Actions within the Climate Plan to create efficient buildings renewable energy generation, and compact development patterns supported by a variety of transit infrastructure. Future development will additionally support the Community Housing Action Plan through additional housing stock variety and availability. 378 11 April 2021 Zone Map Amendment: Stockyard Properties G. Does the new zoning promote compatible urban growth? Yes, therefore this criterion has been met. The Bozeman Community Plan establishes a preferred and compatible development pattern through the Future Land Use Map, which establishes generalized expectations for what goes where in the community. Moreover, the UDC explicitly defines compatible urban growth, which does not require uniformity in order to ensure compatibility. The City’s zoning ordinances define the uses and development standards associated for projects proposed under the auspices of each zone. Each zone includes a range of uses that appropriate. The future land use map includes two designations for the subject properties. In the northwest corner, the map designation is Residential Mixed Use. This designation correlates with several zoning districts, including REMU zoning, as proposed by the applicant. The remainder of the property is designated as Community Commercial Mixed Use, which allows for B -2M zoning as proposed by the applicant. Based on the land use map designations and correlated zoning districts in the plan and proposed by the applicant, the zone map amendment would promote compatible urban growth. Also see the discussion in (H) below. As discussed above the requested zoning is also supported by the Climate Plan and Community Housing Action Plan. H. Does the new zoning promote the character of the district? Yes, therefore this criterion has been met. This Site lies within the Story Mill Historic District, and future development conceptual proposals will detail how the Project Team intends to enhance character of the district through development. Nearby Story Mill Park has deeply influenced the character of this area, and future site development will be looking to enhance the character of this area. Art, architecture, and site design will all be applied with a focus on district character. These zones will offer future site development options to create appropriately sized residential and neighborhood scale commercial in proximity to the 379 12 April 2021 Zone Map Amendment: Stockyard Properties Bridger View Redevelopment project and Story Mill Park. The proposed REMU and B-2M zoning provide for future development options that support compatible character of development. Concept applications are being prepared to further detail how future development under the proposed zoning is appropriate. For this review the zone map amendments proposed do not allow for uses that are significantly different than those currently allowed, and therefore it is hard to foresee significant and negative impact on community character. I. Does the new zoning address the affected area’s peculiar suitability for particular uses? Yes, therefore this criterion has been met. The proposed zone change does not represent a significant change from the current B -1 and R-4 zoning, and it is consistent with adjacent zoning, current and proposed uses in the area, and the Bozeman Community Plan for future land uses. Multiple commercial and residential uses currently exist in proximity to the subject site. Additionally, B-2M and REMU zoning designations will encourage mixed -use development adjacent to established and planned multi-modal infrastructure, making this site particularly suitable for the requested zoning designations. This Site will have flexibility to promote a cohesive neighborhood pattern that will connect adjacent roadways and corridors, and extend existing public infrastructure. Moreover this zoning will not impact the UDC requirements for future development in this location along the East Gallatin River. 380 13 April 2021 Zone Map Amendment: Stockyard Properties J. Was the new zoning adopted with a view to conserving the values of buildings? Yes, therefore this criterion has been met. The Stockyard Cafe building is to be relocated, as it lies within the Story Mill Road right -of-way, however most of the remaining buildings will remain at this site, including the designated historic structures. The Auction House. As the site lies within the Story Mill Historic District, special care will be taken to ensure the historic character of the buildings and site remains intact as future development plans are prepared. 381 14 April 2021 Zone Map Amendment: Stockyard Properties K. Does the new zoning encourage the most appropriate use of land throughout the jurisdictional area? Yes, therefore this criterion has been met. The proposed zone change is consistent with the FLUM outlined in the Bozeman Community Plan as demonstrated throughout this narrative. Increased commercial and mixed use density is appropriate at this location due to the proximity to roadway and transportation systems, the Story Mill Park, and the Bridger View residential neighborhood. Therefore, the proposed B-2M and REMU zoning will further encourage development that is of the highest and best use of this infill site. As stated above, the Bozeman Community Plan is the tool utilized to illustrate the most appropriate use the project sites. In this case, urban -scale residential and mixed-use development are shown in that Plan as the most appropriate types of development for the property. The Unified Development Code further contains standards and review procedures that will to ensure the land is developed in ways that protect and promote public health, safety, and general welfare. 382 15 April 2021 Zone Map Amendment: Stockyard Properties IV. Response to Spot Zoning Criteria A. Are the requested zoning designation and potential uses significantly different from the prevailing uses in the area? No, therefore this criterion has been met. The requested B-2M zoning, and the mix uses available within this district, offers an opportunity for the future development of the site under assumptions that do not significantly differ from the uses proposed in this area. The Bridger View Redevelopment project to the north is creating a mix of housing options that can be served by the neighborhood-scale commercial development envisioned for the B -2M Site areas. Both B-2M and B-1 are appropriate for commercial nodes, and both districts encourage multi-household residential as a secondary use and support a range of commercial uses. B-2M, however, allows for more flexibility with respect to height and parking standards, and therefore encourages denser development that supports the highest, best use of the project site. REMU is not significantly different from the R-4 designation, as both are predominately residential in their nature. REMU does offer additional commercial uses that are not allowed in R -4, and hereto rezoning the B-1 area requested as REMU will provide for neighborhood scale development that is Site appropriate. REMU zoning and the potential uses are therefore not significantly different from the prevailing zones and uses in proximity. B. Does the requested zoning designation benefit a small area and only one or a few landowners, or does the requested zoning benefit the surrounding neighborhood, community and general public? This criterion has been met. A zone change for the 15.33 acres has the potential to benefit both the surrounding neighborhood and the community as a whole. This change will conceivably prove to be a beneficial asset to the surrounding area by providing flexibility to enrich future area growth and transit options, offer support services to a future mixed housing residential node, and contribute to the neighborhood fabric in the Story Mill area. It is 383 16 April 2021 Zone Map Amendment: Stockyard Properties also envisioned that generalized benefits would accrue to the City when future development occurs at a more intensive level. C. Is the requested zoning designation compatible with the zoning district’s plan or is it special legislation designed to benefit only one or a few landowners at the expense of the surrounding land owners? This criterion has been met. This ZMA does not represent special legislation designed to benefit the land owner at the expense of the adjacent property owners. Both the current and proposed zoning allow the similar uses at similar scales, and therefore it is difficult to foresee this proposed change to B-2M and REMU, respectively, will negatively impacting the surrounding land owners. Additionally, the proposed zone change is compatible with City policies (i.e. Bozeman Community Plan, Climate Plan, and Affordable Housing Action Plan) and state statute governing the approval of such requests. This is a request, simply, is to move from to a blend of residential- and commercial mixed use zones that are offer more contemporary development options from their existing counterparts. Compact infill will be the result of redevelopment, and the requested zoning thus proposes thoughtful future development opportunities that will meet the needs of the neighborhood and the community, not negatively impact surrounding land owners. 384 385 386 387 388 Bridger View PUD STORY MILL COMMUNITY PARKCOS 2865 PARCEL 3EAST GRIFFIN DRIVE STORY M IL L ROADAREA 1TRACT 23ACOS NO. 25472.27 ACRES GROSS2.18 ACRES NETAREA 3TRACT 1COS NO. 1147A0.51 ACRES GROSS0.47 ACRES NETAREA 5TRACT 3 COSNO. 1147A0.85 AC GROSS0.44 AC NETAREA 6REMAINDER TRACT 4COS NO. 1147B10.16 ACRES GROSS9.58 ACRES NETAREA 2TRACT KCOS NO. 25470.74 ACRES GROSS0.741 ACRES NETAREA 4TRACT 2 COS NO.1147A0.80 ACRES GROSS0.64 ACRES NETHILLSIDE LANE STORY MILLCOMMUNITY PARKSTORY MILLDDDSTORYMILL COMMUNITY PARKHILLSIDE LANE C 1.0EXISTINGCONDITIONSPLANPROFESSIONALENGINEERS &SURVEYORSSTOCKYARD SITE STAHLYENGINEERING& ASSOCIATESWAKE UP INC BOZEMAN MONTANANOTE: PROPOSED STORYMILL ROAD AND BRIDGERVIEW IMPROVMENTS SHOWN AS EXISTING CONDITIONS389 390 DRAFT391 Memorandum REPORT TO:City Commission FROM:Chris Saunders, Community Development Manager Martin Matsen, Community Development Director SUBJECT:Gran Cielo Subdivision Phase 2 Zone Map Amendment of the City Zoning Map on 9.01 Acres to Change from R-4 High Density Residential District to a Zoning Designation of R-5 Residential Mixed-Use High Density District, Located South of Stucky Road, West of South 27th Avenue, and north of Bennett Boulevard, Application 21095 MEETING DATE:August 3, 2021 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Recommended Zoning Commission Zoning Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby move to adopt the findings presented in the staff report for application 21095 and move to recommend approval of the Gran Cielo Subdivision Phase 2 Zone Map Amendment, with contingencies required to complete the application processing. STRATEGIC PLAN:4.1 Informed Conversation on Growth: Continue developing an in-depth understanding of how Bozeman is growing and changing and proactively address change in a balanced and coordinated manner. BACKGROUND:See the attached staff report. UNRESOLVED ISSUES:None. ALTERNATIVES:As identified in the Staff Report. FISCAL EFFECTS:None. Attachments: 21095 Gran Cielo Ph. 2 ZMA_staff_report CC 7-27-21.pdf 21095 Gran Cielo Ph 2 ZMA Application Materials.pdf Report compiled on: July 27, 2021 392 Page 1 of 20 21095 Staff Report for the Gran Cielo Subdivision Phase 2 Zone Map Amendment Public Hearing: Zoning Commission meeting is on July 26, 2021 City Commission meeting is on August 3, 2021 Project Description: Amendment of the City Zoning Map on 9.01 acres to change from R-4 High Density Residential District to a zoning designation of R-5 Residential Mixed- Use High Density District. Project Location: South of Stucky Road, west of South 27th Avenue, and north of Bennett Boulevard, legally described as Parcel 3 of Certificate of Survey 2725 located in the Section 23, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana. Recommendation: Meets standards for approval with contingencies. Recommended Zoning Commission Zoning Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby move to adopt the findings presented in the staff report for application 21095 and move to recommend approval of the Gran Cielo Subdivision Phase 2 Zone Map Amendment, with contingencies required to complete the application processing. Recommended City Commission Zoning Motion: Having reviewed and considered the staff report, application materials, public comment, recommendation of the Zoning Commission, and all information presented, I hereby move to adopt the findings presented in the staff report for application 21095 and move to approve the Gran Cielo Subdivision Phase 2 Zone Map Amendment with recommended contingencies required to complete the application processing. Report: July 16, 2021 Staff Contact: Chris Saunders, Community Development Manager Agenda Item Type: Action - Legislative EXECUTIVE SUMMARY This report is based on the application materials submitted and public comment received to date. 393 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 2 of 20 Unresolved Issues None. Project Summary The City reviews applications for zone map amendments as they are submitted by the landowner. The landowner submitted an application to rezone a single parcel and adjacent rights-of-way of South 27th Avenue, Bennet Boulevard, South 29th Avenue, and Apex Drive. The property is currently undeveloped but is part of an approved phased subdivision. The purpose of zone map amendment (ZMA) review is to evaluate the 11 criteria established in state law for modifying the City’s zoning map. Review of the zoning criteria is guided by the policies for zoning review set by the City Commission in the Bozeman Community Plan 2020, pages 71-78. Setting a zoning district establishes the development standards applicable to a particular area. Most of the City’s development standards, such as park development standards, access to municipal utilities, and street configurations are uniform across all zoning districts. The ZMA process includes two public hearings to receive public input applicable to the identified criteria. The application proposes a zoning designation of R-5 Residential Mixed-Use High Density District to facilitate future urban scale development. The zone map amendment application does not authorize any construction. Prior to any further development of the site, a site plan must be submitted, reviewed against all applicable development criteria, and approved. Any development proposal must demonstrate compliance with City standards and adequate infrastructure (such as streets, water, parks, and sewer) to meet needs of the development. Zoning Commission The Zoning Commission conducted their public hearing on July 26th. No public comment was received. The Zoning Commission recommends in favor of the application as presented. Video recording of the meeting is available at https://bozeman.granicus.com/player/clip/119?view_id=1&redirect=true. Alternatives 1. Approve the application and associated ordinance with contingencies as presented; 2. Deny the application based on findings of non-compliance with the applicable criteria contained within the staff report; or 3. Open and continue the public hearing on the application, with specific direction to staff or the applicant to supply additional information or to address specific items. 394 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 3 of 20 TABLE OF CONTENTS EXECUTIVE SUMMARY ...................................................................................................... 1 Unresolved Issues ............................................................................................................... 2 Project Summary ................................................................................................................. 2 Zoning Commission ............................................................................................................ 2 Alternatives ......................................................................................................................... 2 SECTION 1 - MAP SERIES .................................................................................................... 4 SECTION 2 - RECOMMENDED CONTINGENCIES OF ZONE MAP AMENDMENT..... 7 SECTION 3 - RECOMMENDATION AND FUTURE ACTIONS ........................................ 8 Zone Map Amendment ....................................................................................................... 8 SECTION 4 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS ............. 8 Spot Zoning Criteria ......................................................................................................... 14 PROTEST NOTICE FOR ZONING AMENDMENTS ......................................................... 16 APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND .............. 16 APPENDIX B - NOTICING AND PUBLIC COMMENT .................................................... 17 APPENDIX C - PROJECT GROWTH POLICY AND PROPOSED ZONING ................... 17 APPENDIX D - OWNER INFORMATION AND REVIEWING STAFF............................ 19 FISCAL EFFECTS ................................................................................................................. 20 ATTACHMENTS ................................................................................................................... 20 395 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 4 of 20 SECTION 1 - MAP SERIES Vicinity Map - 2018 Aerial Photo Insert Project Vicinity Map from growth policy Insert additional maps as needed Vicinity Map Subject property 396 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 5 of 20 Growth Policy Future Land Use Map – note the Urban Neighborhood designation Subject property 397 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 6 of 20 Current Zoning Map Subject property 398 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 7 of 20 Approved Preliminary Plat Layout, Application 19219, for the Amendment Site SECTION 2 - RECOMMENDED CONTINGENCIES OF ZONE MAP AMENDMENT Please note that these contingencies are necessary for the City to complete the process of the proposed amendment. Recommended Contingencies of Approval: 1. All documents and exhibits necessary to establish a municipal zoning designation must be identified as the “Gran Cielo Subdivision Phase 2 2021 Zone Map Amendment”. 2. That the applicant must submit a Zone Amendment map, titled “Gran Cielo Subdivision Phase 2 2021 Zone Map Amendment.” The map must be supplied as a PDF. This map must be acceptable to the City Engineer's Office and must be submitted within 60 days of 399 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 8 of 20 the action to approve the zone map amendment. Said map shall contain a metes and bounds legal description of the perimeter of the subject property including adjacent rights-of-way or street easements, and total acreage of the property to be rezoned; unless the property to be rezoned can be entirely described by reference to existing platted properties or certificates of survey. 3. The Ordinance for the Zone Map Amendment shall not be drafted until the applicant provides an editable metes and bounds legal description prepared by a licensed Montana surveyor. SECTION 3 - RECOMMENDATION AND FUTURE ACTIONS Zone Map Amendment Having considered the criteria established for a zone map amendment, the Staff recommends approval as submitted, subject to the contingencies provided in Section 2 (above). The Development Review Committee (DRC) considered the amendment. The DRC did not identify any infrastructure or regulatory constraints that would impede the approval of the application. The Zoning Commission held a public hearing on this ZMA on July 26, 2021 and forwards a recommendation of approval to the Commission on the Zone Map amendment. The meeting was held using WebEx. Instructions for joining the meeting were included on the agenda published on the City website. The meeting began at 6 p.m. The City Commission will hold a public hearing on the zone map amendment on August 3, 2021. The meeting will be held using WebEx. Instructions for joining the meeting are included on the agenda published on the City website. The meeting will begin at 6 p.m. SECTION 4 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for approval under this title, the advisory board and City Commission must consider the following criteria (letters A-K). As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. A zone map amendment must be in accordance with the growth policy (criteria A) and be designed to secure safety from fire and other dangers (criteria B), promote public health, public safety, and general welfare (criteria C), and facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements (criteria D). Therefore, to approve a zone map amendment the Commission must find Criteria A-D are met. 400 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 9 of 20 In addition, the Commission must also consider criteria E-K, and may find the zone map amendment to be positive, neutral, or negative with regards to these criteria. To approve the zone map amendment, the Commission must find the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. In determining whether the criteria are met, Staff considers the entire body of plans and regulations for land development. Standards which prevent or mitigate negative impacts are incorporated throughout the entire municipal code but are principally in Chapter 38, Unified Development Code. Section 76-2-304, MCA (Zoning) Criteria A. Be in accordance with a growth policy. Criterion met. The Bozeman Community Plan 2020 includes a Future Land Use Map providing 10 land use categories to illustrate and guide the intent, type of use, density, and intensity of future development. The map depicts the best long term development types and uses from the City’s perspective. The Future Land Use Map designates the subject property and much of the surrounding area as “Urban Neighborhood”. The Urban Neighborhood land use designation provides for urban density homes in a variety of types, shapes, sizes, and intensities where large areas of any single type of housing are discouraged. It also promotes complementary uses such as parks, home-based occupations, fire stations, churches, schools, and some neighborhood- serving commercial activity centers that could facilitate the provision of services and employment opportunities without requiring the use of a car. Zoning districts that correlate with the Urban Neighborhood designation include the current R-4 Residential High Density District and the proposed R-5 Residential Mixed-Use High Density District, among others. The existing R-4 zoning district provides for high-density residential development through a variety of housing types with associated service functions, as well as allowing office use as a secondary use. This zone is appropriate for areas adjacent to mixed-use districts, commercial districts, and/or served by transit to accommodate a higher density of residents in close proximity to jobs and services. The proposed R-5 zoning district provides for high-density residential development through a variety of compatible housing types and residentially supportive commercial uses in a geographically compact, walkable area to serve the varying needs of residents. The R-5 district provides for a mixture of housing types and allows offices and small scale retail and restaurants as secondary uses provided that special standards are met to ensure compatibility. The primary differences between the R-4 and R-5 districts are the R-5 district allows a greater variety of land uses such as small scale neighborhood commercial and has fewer and more relaxed form and intensity requirements for residential uses. This means residences within the R-5 district can be developed at a more intensive urban scale, with smaller 401 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 10 of 20 minimum lot area per dwelling, higher percentage of allowable lot coverage, higher maximum building heights, etc., than the R-4 district. The project site is less than 700 feet from the Community Commercial Mixed Use node west of 19th and on either side of Stucky Road. The proposal to rezone the property to R-5 is in alignment with several goals, objectives, and actions of the growth policy, as follows: N-2.2 Revise the zoning map to support higher intensity residential districts near schools, services, and transportation. N-3.7 Support compact neighborhoods, small lots sizes, and small floor plans, especially through mechanisms such as density bonuses. DCD-1.9 Promote mixed-use developments with access to parks, open space, and transit options. DCD-2.5 Identify and zone appropriate locations for neighborhood-scale commercial development. M-1.1 Prioritize mixed-use land use patterns. Encourage and enable the development of housing, jobs, and services in close proximity to one another. EE-1.3 Continue to facilitate live/work opportunities as a way to support small, local businesses in all zoning districts. In summary, the proposed R-5 zoning district is in accordance with the growth policy because it complies with the Future Land Use Map and would help to implement several of the Bozeman Community Plan 2020 goals, objectives and actions. B. Secure safety from fire and other dangers. Criterion met. The subject property is located within the City limits where future development will be served by City of Bozeman Fire, Police, and Public Works Departments. Development of the property will be required to conform to all City of Bozeman public safety, building, and land use requirements, which will ensure this criterion is met. The change to R-5 is not likely to adversely impact safety from fire or other dangers. C. Promote public health, public safety, and general welfare. Criterion met. Future development of the site will require site plan review and compliance with the City’s Unified Development Code (UDC). The UDC ensures the promotion of public health, safety and general welfare by ensuring safe access is provided, fire hydrants are installed, and other improvements are made in accordance with City requirements. The proposed amendment does not put undue burden on municipal services, emergency response capability, or similar existing requirements. 402 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 11 of 20 D. Facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements. Criterion met. The subject property is serviced by an extension of South 27th Avenue as well as the future installation of Bennett Boulevard, South 29th Street, and Apex Drive. Site plan review, in addition to City impact fees, will ensure adequate transportation facilities, water, sewer, and parks and trails will be provided. The application states parkland for the entire Gran Cielo Subdivision was dedicated and constructed with the initial Phase 1. Staff confirms this has been completed. The application indicates the subject property falls within the Hyalite Elementary School, Sacajawea Middle School, and Bozeman High School District boundaries. As of this writing, no comment has been received from school officials. The City conducts extensive planning for municipal transportation, water, sewer, parks, and other facilities and services provided by the City. The adopted plans allow the City to consider existing conditions and identify enhancements needed to provide additional service made necessary by new development. The City implements these plans through its capital improvements program that identifies individual projects, project construction scheduling, and financing of construction. As stated in Unified Development Code Section 38.300.020.C, the designation of a zoning district does not guarantee approval of new development until the City verifies the availability of needed infrastructure. All zoning districts in Bozeman enable a wide range of uses and intensities. At time of future subdivision or site plan review the need for individual services can be more precisely determined. No subdivision or site plan is approved without demonstration of adequate capacity. 38.300.020.C, “Placement of any given zoning district on an area depicted on the zoning map indicates a judgment on the part of the city that the range of uses allowed within that district are generally acceptable in that location. It is not a guarantee of approval for any given use prior to the completion of the appropriate review procedure and compliance with all of the applicable requirements and development standards of this chapter and other applicable policies, laws and ordinances. It is also not a guarantee of immediate infrastructure availability or a commitment on the part of the city to bear the cost of extending services.” E. Reasonable provision of adequate light and air. Criterion met. The City’s Unified Development Code includes requirements for providing adequate light and air including maximum building height and setback requirements and building design standards. Future development of the property will be subject to these requirements. The building codes further address air and light. 403 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 12 of 20 F. The effect on motorized and non-motorized transportation systems. Criterion met. The site is presently vacant and has vacant property to the west, north, and east. The Gran Cielo subdivision is beginning construction of homes to the south. South 27th Avenue, which is classified as a collector, provides access to the property from the north and east. Bennett Boulevard to the south, South 29th Avenue to the west, and future Apex Drive to the north will provide connectivity to the property from the City’s street network. Although upzoning the property will allow for greater density and intensity of development which will result in additional demands on the City’s transportation system, under Bozeman’s Unified Development Code, new development is required to provide adequate motorized and non-motorized transportation facilities including streets, bike lanes, and sidewalks. Additionally, the preliminary plat approval for the Gran Cielo Subdivision required waiving the right to protest the creation of future special improvement districts and participation in funding of future infrastructure improvements that may be required to offset impacts created by development of the property. The Streamline bus service does not have a route in this area. As adjacent planned commercial development occurs the availability of walking destinations will increase. The growth policy encourages development to be walkable, which is defined in the glossary as: Walkable. A walkable area has: • A center, whether it’s a main street or a public space. • People: Enough people for businesses to flourish and for public transit to run frequently. • Parks and public space: Functional and pleasant public places to gather and play. • Pedestrian design: Buildings are close to the street, parking lots are relegated to the back. • Schools and workplaces: Close enough that walking to and from home to these destinations is realistic. • Complete streets: Streets designed for bicyclists, pedestrians, and transit. With the complexity of features needed to create a walkable environment, no one site is likely to provide all the needed elements. The additional density will help provide for element two with potential for additional persons in the area. The site has a Walk Score of zero, a Transit score of zero, and a Bike Score of 48. Average walk score for the city as a whole is 48 out of 100. These values are provided by Walk Score, a private organization which presents information on real estate and transportation through walkscore.com. The algorithm which produces these numbers is proprietary. A score is not an indication of safety or continuity of services or routes. Scores are influenced by proximity of housing, transit, and services and expected ability, as determined by the algorithm, to meet basic needs without using a car. Sites located on the edge of the community, such as this site, will have lower scores than those in the center of the community as the area is still under 404 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 13 of 20 development and therefore diversity of uses is less than in fully established areas. There are no adopted development standards relating to the walk score. G. Promotion of compatible urban growth. Criterion met. At the time of this writing, the property is undeveloped but is planned to support urban scale residential and possibly mixed-use development. The proposal to rezone the property to R-5 is in alignment with the Urban Neighborhood designation of the Bozeman 2020 Community Plan Future Land Use Map, as well as several goals, objectives, and actions of the plan. The R-5 district allows land uses that are compatible with the zoning of the surrounding area. The Unified Development Ordinance includes building and site design standards that will be applied when development is proposed to lessen potential impacts to surrounding residents and to ensure compatibility. The property to be rezoned is wholly surrounded by streets which provide a physical separation and buffer between the site and adjacent properties. H. Character of the district. Criterion met. Section 76-2-302, MCA says “…legislative body may divide the municipality into districts of the number, shape, and area as are considered best suited to carry out the purposes [promoting health, safety, morals, or the general welfare of the community] of this part.” Emphasis added. This proposal amends the zoning map and not the text. Therefore, no element of this amendment modifies the standards of any zoning district. The character of the districts as created by those standards remains intact. As noted above, the City Commission has latitude in considering the geographical extents of a zoning district. The property is currently zoned R-4, which allows for a similar set of land uses as the proposed R-5, albeit at lesser scale and intensity. Application of any municipal zoning district to the subject property will alter the existing character of the subject property, which is open land planned for urban development in a quickly growing area. It is not expected that zoning freeze the character of an area in perpetuity. Rather, it provides a structured method to consider changes to the character. The City has defined compatible development as: “The use of land and the construction and use of structures which is in harmony with adjoining development, existing neighborhoods, and the goals and objectives of the city's adopted growth policy. Elements of compatible development include, but are not limited to, variety of architectural design; rhythm of architectural elements; scale; intensity; materials; building siting; lot and building size; hours of operation; and integration with existing community systems including water and sewer services, natural elements in the area, motorized and non-motorized transportation, and open spaces and parks. Compatible 405 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 14 of 20 development does not require uniformity or monotony of architectural or site design, density or use.” The City has adopted many standards to identify and avoid or mitigate demonstrable negative impacts of development. These will support the ability of future development in R-5 to be compatible with adjacent development and uphold the residential character of the area. I. Peculiar suitability for particular uses. Criterion met. The Urban Neighborhood growth policy designation applies not only to the subject property, but also most of the surrounding area. Careful planning and deliberation went into crafting the Future Land Use Map, which guides development of the City as it grows both inward and outward. Through careful planning, City officials deemed this area to be particularly suitable for urban-scale residential and complementary mixed-use development in a variety of types, shapes, sizes, and intensities, including the types and scales of development allowed under the R-5 zoning district. Rezoning the property to R-5 will enable future development to implement the Urban Neighborhood vision created by the drafters of the Future Land Use Map. J. Conserving the value of buildings. Neutral. There are no buildings on the property today that would be impacted by the zone change. However, Future Land Use Map provides for community commercial mixed-use development a short distance to the east. Smaller scale commercial development will benefit from the additional residents that can be accommodated under the R-5 zoning, which should have the effect of making local commercial businesses more viable and vital due to a larger customer base. K. Encourage the most appropriate use of land throughout the jurisdictional area. Criterion met. Through careful deliberation and planning and with extensive public input, the growth policy drafters decided this area of Bozeman is most appropriate for urban scale residential development with complementary land uses. The R-5 zoning district will help to promote that vision by allowing several types of housing with limited, complementary commercial and supportive land uses. Spot Zoning Criteria Rezoning may, in certain factual circumstances, constitute impermissible “spot zoning.” The issue of whether a rezoning constitutes spot zoning was discussed by the Montana Supreme Court in Plains Grains LP v. Board of County Comm’rs of Cascade County and Little v. Bd. Of County Comm’rs, in which the Court determined that the presence of the following three conditions generally will indicate that a given situation constitutes spot zoning, regardless of variations in factual scenarios. 406 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 15 of 20 Based on the review of the following criteria, Staff concludes that this application is not Spot Zoning. 1. Is the proposed use significantly different from the prevailing land uses in the area? Criterion not met. This criterion includes the modifier ‘significantly.’ It is not prohibited to have uses that are different. To satisfy this criterion, the reviewer must demonstrate a ‘significant difference.’ As an example, in the Plains Grains LP case the change was from Agricultural to Heavy Industrial; and in the Little case the zoning was commercial which zoning was in conflict with the planned residential uses shown in the growth policy and existing in the surrounding area. The City’s R-4 district abuts the property to the north and west while the R-3 district abuts the property to the south. The proposed R-5 district allows for the same land uses as the neighboring R-4 district, while also allowing small-scale restaurants and retail on street corner sites within mixed-use buildings. The R-3 district is more restrictive, but also provides for a variety of residential building types. Therefore, the suite of land uses allowed in the R- 5 district is not significantly different from the uses allowed in the surrounding area. The property to the east is not yet annexed but is planned for future urban residential development. 2. Is the area requested for the rezone rather small in terms of the number of separate landowners benefited from the proposed change? Criterion met. Only one property is proposed for rezoning. This property is owned by one landowner, Bozeman Haus, LLC, which would be the only landowner to directly benefit from the proposed zone change. The property is approximately 9 acres. 3. Would the change be in the nature of “special legislation” designed to benefit only one or a few landowners at the expense of the surrounding landowners or the general public? Criterion not met. Although only one landowner would directly benefit from the proposed zone change, the change would not be made at the expense of surrounding landowners or the general public. As stated previously, considerable public outreach and deliberation went into the crafting of the Bozeman Community Plan 2020, which is an adopted statement of public policy made in the interest of the community as a whole. The plan identifies this area as being suitable for urban scale residential development. The R-5 zoning district is in alignment with the Urban Neighborhood growth policy designation applied to the property. The rezoning would help to implement the adopted policy vision provided in the Bozeman Community Plan 2020, so cannot be found to be at the expense of the surrounding landowners or the general public. 407 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 16 of 20 PROTEST NOTICE FOR ZONING AMENDMENTS IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION. The City will accept written protests from property owners against the proposal described in this report until the close of the public hearing before the City Commission. Pursuant to 76-2-305, MCA, a protest may only be submitted by the owner(s) of real property within the area affected by the proposal or by owner(s) of real property that lie within 150 feet of an area affected by the proposal. The protest must be in writing and must be signed by all owners of the real property. In addition, a sufficient protest must: (i) contain a description of the action protested sufficient to identify the action against which the protest is lodged; and (ii) contain a statement of the protestor's qualifications (including listing all owners of the property and the physical address), to protest the action against which the protest is lodged, including ownership of property affected by the action. Signers are encouraged to print their names after their signatures. A person may in writing withdraw a previously filed protest at any time prior to final action by the City Commission. Protests must be delivered to the Bozeman City Clerk, 121 North Rouse Ave., PO Box 1230, Bozeman, MT 59771-1230. APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND The 9.01-acre subject is part of a larger, 124-lot phased residential development project within the Bozeman City Limits called Gran Cielo Subdivision. The majority of the subdivision is located immediately to the south of the subject property and is zoned R-3 Residential Medium Density District. The subject property and land to the west and north is zoned R-4 Residential High Density District, and the application proposes a zoning designation of R-5 Residential Mixed-Use High Density for the property. The purpose of the R-5 district is to provide for high-density residential development through a variety of compatible housing types and residentially supportive commercial uses in a geographically compact, walkable area to serve the varying needs of the community’s residents. These purposes are accomplished by providing a mixture of housing types, including single and multi-household dwellings to serve the varying needs of the community’s residents, and by allowing offices and small scale retail and restaurants as secondary uses provided special standards are met. This district is appropriate for areas adjacent to mixed-use districts (mixed use is planned to the east) and/or served by transit to 408 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 17 of 20 accommodate a higher density of residents in close proximity to jobs and services (this area is developing so is not yet served by transit, but is relatively close to the Montana State University campus and surrounding jobs and services). APPENDIX B - NOTICING AND PUBLIC COMMENT In accordance with the requirements of Bozeman Unified Development Ordinance Table 38.220.420, notice of the application, availability of information related to the application, and notice of the public hearings was published in the Bozeman Daily Chronicle on July 4, 2021 and July 18, 2021. The site was posted in two locations and notices mailed by the applicant and the required confirmation provided to the Planning Office. Notice was provided at least 15 and not more than 45 days prior to each public hearing. As of the writing of this report on July 26, 2021, no written comments have been received on this application. APPENDIX C - PROJECT GROWTH POLICY AND PROPOSED ZONING Adopted Growth Policy Designation: The property is designated as “Urban Neighborhood” in the Bozeman Community Plan 2020. 1. URBAN NEIGHBORHOOD. This category primarily includes urban density homes in a variety of types, shapes, sizes, and intensities. Large areas of any single type of housing are discouraged. In limited instances, an area may develop at a lower gross density due to site constraints and/or natural features such as floodplains or steep slopes. Complementary uses such as parks, home-based occupations, fire stations, churches, schools, and some neighborhood-serving commerce provide activity centers for community gathering and services. The Urban Neighborhood designation indicates that development is expected to occur within municipal boundaries. This may require annexation prior to development. Applying a zoning district to specific parcels sets the required and allowed density. Higher density residential areas are encouraged to be, but are not required or restricted to, proximity to commercial mixed use areas to facilitate the provision of services and employment opportunities without requiring the use of a car. Proposed Zoning Designation and Land Uses: The applicant has requested zoning of R-5 Residential Mixed-Use High Density District. The intent of the R-5 District is to provide for high-density residential development through a variety of compatible housing types and residentially supportive commercial uses in a geographically compact, walkable area to serve the varying needs of the community's residents. These purposes are accomplished by: 409 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 18 of 20 1. Providing for a mixture of housing types, including single and multi-household dwellings to serve the varying needs of the community's residents. 2. Allowing offices and small scale retail and restaurants as secondary uses provided special standards are met. Table 4 of the Bozeman Community Plan 2020 shows the correlation between future land use map designations and implementing zoning districts. (see below for the Table) 410 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 19 of 20 APPENDIX D - OWNER INFORMATION AND REVIEWING STAFF Owner: Bozeman Haus, LLC 15267 SE Rivershore Drive Vancouver, WA 98683 Applicant: Cadius Partners, LLCs 23 Apex Drive Bozeman, MT 59718 411 Staff Report for 21095 Gran Cielo Subdivision Phase 2 Zone Map Amendment Page 20 of 20 Representative: Chris Budeski, PE, Madison Engineering, LLC 895 Technology Boulevard Suite 203 Bozeman, MT 59718 Report By: Chris Saunders, AICP, Community Development Manager FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Annexation or Zone Map Amendment. ATTACHMENTS The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. 412 413 414 415 Gran Cielo - Zone Map Amendment Application Narrative Page 1 of 3 GRAN CIELO ZONE MAP AMENDMENT APPLICATION CHECKLIST NARRATIVE 1. Zone Map Amendment Criteria a. Is the new zoning designed in accordance with the growth policy? How? Response: Yes, the proposed Zone Map Amendment is in accordance with the City’s Growth Policy, the Bozeman Community Plan. The proposed zoning is R5 – Residential Mixed-Use High Density and the property is designated as residential in the growth policy. b. Will the new zoning secure safety from fire and other dangers? How? Response: Yes, the proposed Zone Map Amendment will secure safety from fire and other dangers by requiring development per the City of Bozeman standards. Regulatory provisions established for all City of Bozeman zoning districts ensure an adequate transportation network, fire services, and public utility lines. c. Will the new zoning promote public health, public safety and general welfare? How? Response: Yes, the proposed Zone Map Amendment will promote public health, public safety and general welfare by requiring the property to develop per the City of Bozeman standards and regulations in terms of public health, safety and general welfare. Any future development is subject to review for protection of the public health, safety, and general welfare of the community. Future connection to municipal water and sanitary sewer will reduce water contamination issues from an abundance of groundwater wells and will eliminate environmental risks associated with septic systems. Municipal fire and emergency response services will protect public health and safety and respond to the property. The subject property falls within the existing City service area. d. Will the new zoning facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements? How? Response: Yes, the proposed Zone Map Amendment will facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Any future development on this parcel will be subject to review by the City of Bozeman for adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Therefore, any development will be required to facilitate the aforementioned in accordance with all City of Bozeman ordinances and regulations. 416 Gran Cielo - Zone Map Amendment Application Narrative Page 2 of 3 The subject property fronts on South 27th Avenue, which is a collector street. Access to the site will be from the future adjacent local streets: Apex Drive, S 29th Ave, and Bennett Blvd. These local streets will allow access to the site for residents, visitors, and any necessary public services such as postal service or emergency access, for example. The subject property falls within the Hyalite Elementary School, Sacajawea Middle School, and Bozeman High School Boundaries. Comments from the schools may be required to verify adequate capacity for future students. Parkland for this area was dedicated with the initial Phase 1 of the Gran Cielo Subdivision. Public infrastructure to serve the proposed R5 zoning area will be installed with the development of the Gran Cielo Ph 2 project. Any additional internal improvements required to connect to the existing infrastructure will be determined during site plan review. e. Will the new zoning provide reasonable provisions of adequate light and air? How? Response: Yes, the proposed Zone Map Amendment will provide reasonable provisions of adequate light and air as the property will be developed to applicable setbacks, height, and buffering standards that have been adopted by the City. f. Will the new zoning have an effect on motorized and non-motorized transportation systems? How? Response: Yes, the proposed Zone Map Amendment may have an effect on the City’s motorized and non-motorized transportation system. Any new development will affect the City’s transportation system with increased traffic. A Traffic Impact Study was completed for the Gran Cielo project, which this proposed rezoning is within. g. Does the new zoning promote compatible urban growth? How? Response: Yes, the proposed zoning promotes compatibility with urban growth, as residential zoning exists to the south, north, and west of the project. The high-density residential zoning will fit in with the medium-density residential neighborhoods to the south. The allowed mixed use in the R5 district will allow for small local support businesses serving these neighborhoods. To the east along Stucky is the Genesis Business Park, which will allow the small businesses in the proposed R5 to fit in to the area. h. Does the new zoning promote the character of the district? How? 417 Gran Cielo - Zone Map Amendment Application Narrative Page 3 of 3 Response: Yes, the proposed zoning does promote the character of the district. As stated above in response g, the adjacent zoning to the south, west, and north is residential and the Bozeman Community Plan Land Use Map designates this property as residential. i. Does the new zoning address the affected area’s peculiar suitability for particular uses? How? Response: The proposed zoning will address the affected area’s peculiar suitability for particular uses as the property will be developed to applicable standards that have been adopted per the City of Bozeman’s development standards and regulations j. Was the new zoning adopted with a view to conserving the value of buildings? How? Response: There are no existing buildings on this site. k. Does the new zoning encourage the most appropriate use of land throughout the jurisdictional area? How? Response: Yes, the proposed Zone Map Amendment will encourage the most appropriate use of land throughout the jurisdictional area. The growth policy identifies the most appropriate use of this property as residential. R5 zoning allows for a broad range of residential housing types mixed with potential offices, restaurants, and small-scale retail. END OF NARRATIVE 418 Gran Cielo - Zone Map Amendment Application Narrative Page 1 of 4 GRAN CIELO ZONE MAP AMENDMENT APPLICATION CHECKLIST NARRATIVE Zone Map Amendment Criteria a. Is the new zoning designed in accordance with the growth policy? How? Response: Yes. The future land use map in the Bozeman Community Plan 2020 designates this property as Urban Neighborhood. Urban Neighborhood category primarily includes urban density homes and correlates with a variety of zoning districts including R-S, R-1, R-2, R-3, R-4, R-5, R-O, REMU RMH, B-1 and PLI. The parcel is currently zoned R4 - Residential High Density. The proposed R5 - Residential Mixed-Use High Density zoning is allowed within the designated future land use of Urban Neighborhood. In addition, the future land use map of Urban Neighborhood is also designated on the north, west and south side of the proposed Zone Map Amendment parcel. A complementary Community Commercial Mixed Use land use designation is located on the east side of the parcel. The proposed zone map amendment from R4 to R5 will allow for similar and additional uses and allow for increased density, increased height requirement and offices and small-scale retail and restaurants as secondary uses in a geographically compact, walkable area to serve the varying needs of the community's residents. b. Will the new zoning secure safety from fire and other dangers? How? Response: Yes, the proposed zoning, which is in compliance with the City’s future plan use map, will secure safety from fire and other dangers as the subject property is within the City limits of Bozeman and will be served by City Fire, Police and Public Works Departments. Public infrastructure, including roadways, water and sewer mains are adjacent to the property and will be extended as required to serve the future development. The City of Bozeman development standards require future development of this property to comply with the Bozeman Municipal Code standards ensuring an adequate transportation network, fire services, and public utility mains be installed to provide a safe neighborhood for the residents. 419 Gran Cielo - Zone Map Amendment Application Narrative Page 2 of 4 c. Will the new zoning promote public health, public safety and welfare? How? Response: Yes, due to the size and character of the parcel future development of the parcels will require the properties to be reviewed through the City’s Site Plan review process which provides standards and regulations that promote public health, safety and general welfare of the residents. In addition, future connection to the City’s municipal water distribution and sanitary sewer collection system will reduce water contamination issues from an abundance of groundwater wells and will eliminate environmental risks associated with septic systems. Municipal fire and emergency response services will protect public health and safety and respond to the property. The subject property falls within the existing City service areas. d. Will the new zoning facilitate the adequate provision of transportation, water, sewage, schools, parks and other public requirements? How? Response: Yes, future development on this parcel will be subject to review by the City of Bozeman for adequate provision of transportation, water, sewerage, schools, parks, and other public requirements as specified in the City’s development and engineering standards. If it is determined during the City’s review process that additional improvements are required to adequately serve the proposed development those improvements would be required to be constructed and/or pay impact fees, assessments, and taxes to support transportation, water, sewer, school, parks, and other public requirements. The subject property fronts on South 27th Avenue, which is a collector street. Access to the site will be from the future adjacent local streets: Apex Drive, S 29th Ave, and Bennett Blvd. These local streets will allow access to the site for residents, visitors, and any necessary public services such as postal service or emergency access, for example. The subject property falls within the Hyalite Elementary School, Sacajawea Middle School, and Bozeman High School Boundaries. Comments from the schools will be required to verify adequate capacity for future students. Parkland for the entire Gran Cielo subdivision was dedicated and constructed with the initial Phase 1 of the Gran Cielo Subdivision. Public infrastructure to serve the future development will be installed with the development of the Gran Cielo Phase 2 project. Any additional internal improvements required to connect to the existing infrastructure will be determined during site plan review. 420 Gran Cielo - Zone Map Amendment Application Narrative Page 3 of 4 e. Will the new zoning provide reasonable provisions of adequate light and air? How? Response: Yes, the City’s development codes include requirements for development to provide adequate light and air with the use of parks and open space areas, maximum building heights, lot coverage and setback requirements. Due to the size and character of the parcel the future development of the parcels will be required to be reviewed through the City’s Site Plan review process ensuring the City’s development codes will be adhered to and will provide adequate light and air. f. Will the new zoning have an effect on motorized and non-motorized transportation systems? How? Response: Yes, the change from R4 to R5 residential zoning will likely have an effect on the City’s motorized and non-motorized transportation system due to the increased allowed density. As the property is currently vacant, any new development will affect the City’s transportation system with increased traffic. A Traffic Impact Study (TIS) was completed for the entire Gran Cielo project in 2017, which this proposed rezoning is within. The city may require the TIS to be updated based on the increased density to determine if additional mitigation would be required. The preliminary plat approval of the Gran Cielo Subdivision required the development to waive their right to protest the creation of future Special Improvement Districts (SID) and participate in funding nearby future infrastructure improvements that may be required to offset impacts created by development. With the development of the parcels within the proposed ZMA, and adjacent properties, development of pedestrian connection systems will be completed. Currently a multi-use trail exists along Graf Street and connects to South 11th which provides a safe and reliable pedestrian connection to MSU and into the center of the city and Streamline Bus stops. g. Does the new zoning promote compatible urban growth? How? Response: Yes, the parcel is currently zoned R4 - Residential High Density. The proposed R5 - Residential Mixed-Use High Density zoning is allowed within the designated future land use of Urban Neighborhood. In addition, the future land use map of Urban Neighborhood is also designated on the north, west and south side of the proposed Zone Map Amendment parcel. A complementary Community Commercial Mixed Use land use designation is located on the east side of the parcel. 421 Gran Cielo - Zone Map Amendment Application Narrative Page 4 of 4 h. Does the new zoning promote the character of the district? How? Response: Yes. As stated previously, the proposed zone map amendment from R4 to R5 will allow for similar and additional compatible uses and allow for increased residential density and offices and small-scale retail and restaurants as secondary uses in a geographically compact, walkable area to serve the varying needs of the community's residents. The proposed zone map amendment, as well as the adjacent properties are designated Urban Neighborhood in the City’s future land use map as Urban Neighborhood. The proposed zoning is in compliant with the Urban Neighborhood designation. The proposed zoning fits within the city’s land use map and establishes a compatible development pattern. i. Does the new zoning address the affected area’s peculiar suitability for particular uses? How? Response: Yes. The property is located within an area designated Urban Neighborhood as defined in the Bozeman Community Plan 2020. Urban Neighborhood category primarily includes urban density homes and correlates with a variety of zoning districts. The proposed R5 zoning is suitable for the site given the adjacent Urban Designation to the west, north and south and Community Commercial Mixed Use land use designation to the east side of the parcel. In addition, there is convenient access to city roadway, water and sewer mains adjacent to the property to serve the future development. j. Was the new zoning adopted with a view to conserving the value of buildings? How? Response: Neutral. There are no existing buildings on this site that may have their values impacted by the zone change. k. Does the new zoning encourage the most appropriate use of land throughout the jurisdictional area? How? Response: Yes. The current zoning of the property is R4 and the City’s Growth Policy designates the property as Urban Neighborhood on the future land use map. The future land use map also designates Urban Neighborhood on the adjacent properties to the north, west and south. Complementary Community Commercial Mixed Use land use designation is located adjacent on the east side of the parcel. Urban Neighborhood category primarily includes urban density homes and correlates with a variety of zoning districts. Based on the future land use map designations and existing residential development to the south, the proposed zoning does encourage the most appropriate use of the land. END OF NARRATIVE 422 423 424 425 Grand Cielo Ph 2 ZMA Adjoiners List Bradley Roy Gary and Bobbie Jo Trustees 5913 Our Way Citrus Heights, CA 95610-6709 SB Holdings LLC PO Box 11530 Bozeman, MT 59719-1530 Hyalite Village Investors LLC PO Box 908 Santa Fe, NM 87504-0908 Raffety Mildred M Trust 901 Lynn Rd Helena, MT 59602-7027 Bennett Marshall & C Luzann 5532 Stucky Rd Bozeman, MT 59718-9036 No lots from Phase 1 have sold yet. All Phase 1 lots belong to Bozeman Haus, LLC (owner of Gran Cielo Subdivision) 426 427 428 S. 30TH AVE (FUTURE)S. 29TH AVES23, T02S, R05E,COS 2725,PARCEL 3APEX DRIVE (FUTURE)BENNETT BLVDS 2 7 T H A V ES. 28TH AVE (FUTURE)S 27TH AVE(FUTURE)S 29TH AVEN 01°22'34" E670.81'S 89°15'48" E516.65'N 01°27'30" E 169.67' N 3 4 ° 3 4 ' 2 1 " E 10 1 . 2 5 'S 89°24'55" E654.14'L = 74.00'R = 300.00'D = 14°07'58"C.B. = S 27°30'22" WC = 73.81'L = 173.39'R = 300.00'D = 33°06'51"C.B. = N 18°00'55" EC = 170.98'S 89°24'55" E16.27'L = 99.39'R = 300.00'D = 18°58'53"C.B. = S 10°56'57" WC = 98.93'SHEETMADISON ENGINEERING 895 TECHNOLOGY BLVD, SUITE 203 BOZEMAN, MT 59718 (406) 586-0262 (406) 586-5740 FAX 1 inch =0SCALE60 feet120'30'60'1 OF 1JLSCGBCGBCGBGRAN CIELO SUBDIVISIONLEGEND ZONE MAP AMENDMENT EXHIBIT BOZEMAN, MTGRAN CIELOZMAVICINITY MAPPROJECTLOCATION429